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REPORTS ^s^s-r 



OP 



CASES ARGUED AND DETERMINED 



IN THS 



SUPREME COBRT OF TENNESSEE, 



DURING THE YEARS 



1858-9. 



BY JOHN \A/. HEAD, 

STATK RKPORTIB. 



VOLUME II. 



-» • — 



NASHVILLE: 

J. O. OBIFPITB ft CO., FRUTTBBS — VIION AKD A.MBKICAy OFFICB. 

1860. 



{Ixxr <rl<n^ a.^./it 



\ 



m < 



CASES REPORTED IN THIS VOLUME. 



AHftma 9, Havor and Aldermen of Somerville^ 868 

Adams, I^ored v 449 

Allen r. Bain 100 

Allen, Parks r - 623 

Allison, Anderson & Co., Anderson v 122 

Allison, Starnes & Wife v ^ 221 

Allison V. Stephens 251 

Alston V, Davis 280 

Ament, Perkins v 110 

Ammon, Baker v 898 

Anderson v, Allison. Anderson & Co «. ~ 122 

Bain. Allen v 100 

Baker v. Ammon • 898 

Baker v, Compton 471 

Bandy, Scott, Baker & Co. « 197 

Bank of the Union, Golladay, Cheatham & Co. v 67 

Bates V. Whitson 165 

Beadle, Wilson t7 610 

Beasley v. Jenkins 191 

Beloter. White 703 

Bigelow V. Mississippi Central and Tennessee B. B. Co 624 

Birdsong v. Birdsong 289 

Birdsongv. Birdsong ^ 608 

Bivens, Croone v ...* ••• 839 

Bondw. Clay « 879 

Bonner, State v •. ...— « *« 185 

Bowers v. Douglass ^ 876 

Bradford r. Caldwell 496 

Brazelton v. Brooks 194 

Brooks, Braselton V 194 

Brown*. State IBO 

Brown, Ryland v 270 

Bullocks. Tipton 408 

Burrough, Woods v 202 

Burroughs v, Gkx>dall 29 

Burton, Mitchell v 618 

Bushart v. Swaili.. 561 

Oaldwell, Bradford » 490 

Cardwell v, Cheatham 14 

Carter & PuUiam r. Turner 52 

CathamtJ. The State ,..., 558 

Chapman V. The State 86 

Cheatham, Cardwell v 14 

Cheek, Park v.. 461 

Clark «. Clark 886 

Clay, Bond V 879 

Cleveland V. Martin 128 

Cochrane, Egnew v 820 

Cockrell, McWhirter v 9 

Coleough 9. Nashville and Northwestern R. R. Co.. 171 

-Coleman r. Satterfleld 269 



iv CASES REPORTED IN THIS VOLUME. 



Coleman, Fletcher v 184 

Collins, Kellogg & Kirby, Thompsons 441 

Compton, Baker v 471 

Compton, Henry v 649 

Connell v. County Judge of Davidson 189 

Conner v. Crunk 246 

Cooley V. Steele ^ 606 

Cope & Co. V. McFarland 643 

Cornelius & Davis v. Morritt 97 

County Judge of Davidson, Connell© 189 

Cozart, Smith v 626 

Crawford, McNeill & Co., State t> 460 

Criner r. Pike 898 

Crittenden t>. Terrill 688 

Cromwell v. Winchester 880 

Croone v. Bivens ^ » 889 

Crunk, Conner v » 246 

Cruse V. McKee » ^ 1 

Cunningham v, Edgefield and Kentucky R. R. Co 28 

Curd & White, Venable & Co. v .• 582 

Darnall, Tomlinson v 688 

Davis, Alston r... 266 

Davis, Gray v 860 

Dean v, Yaccaro & Co 488 

Dement r. Scott 867 

Dement r. The State 605 

Donell, Williams v 695 

Douglass, Bowers v 876 

Douglass, Planters' Bank o 699 

Drewry v. Vaden 812 

Edgefield & Kentucky R. R. Co., Cunningham v 28 

Egnew V. Cochrane 820 

Elrod V Myers 88 

Elrod V. Lancaster .* 671 

Epperson, Gage, Dater & Massey v 669 

Paulker, Louisville & Nashville R. R. v 66 

Felts V. Mayor and Aldermen of Memphis 660 

Fisher, Hopper t? 263 

Fishery. Pollard 314 

Fleming v. Martin 48 

Fletcher v. Coleman ;.... 384 

Fogg t?. Williams 474 

Ford u. Grieshaber. 435 

Ford, Frazer v 464 

Forsey v. Luton 183 

Frazer v. Ford 464 

Gambill, Smiley v 164 

Gates, Haynes v 698 

Gage, Dater & Massev «. Epperson 669 

Gaugh and Wife v. Henderson 628 

Gee v. Graves 239 

Ginbs 1?. Ross.... 437 

Golladay, Cheatham & Co. v. Bank of the Union 67 

Goodall, Burroughs v 29 

Goss V. Singleton 67 

Graves, Gee v 239 

Gray v. Davis 860 



CASES REPORTED IN THIS VOLUME. 



Green, State w 856 

Grieshaber, Fordr 435 

Griffin & Co., WelU r 508 

Hall, Parker tr 641 

Hassell V. Southern Bank of Kentucky 881 

Hajnes r. Jones 372 

Haynes v. Gates 598 

Henry A Shackleford, Philips© ; 138 

Henry r. Compton 549 

Henderson, Gaugh and Wife v 628 

Hess, Sandeford v 680 

Hillu. Hinton 124 

Hinton, Hill « 124 

Hopper V.Fisher * 253 

Hunter. Lownes, Orgill & Co. v ^4) 

Isaac (a slave) V. The State 458 

Jenkins, Beasley p 191 

Jones, Haynes v 872 

Jones, Memphis and Charleston R. R. Co. v 517 

Jones, Taylor v 565 

Joyner, Leslie v 514 

Lancaster, Elrod v 571 

Larry. O'SuUivan v 54 

Lashley v, Wilkinson 482 

Leetchv. The State 140 

Leslie v. Joyner 614 

Lcvick. Brother & Co., Yenable & Co. v 851 

Lillard v. Porter 177 

Lincoln v. Purcell 148 

Louisville and NashYiUe R. R. Co. v, Faulkner 65 

Love V. Williams 80 

Lownes, Orgill & Co. v. Hunter... 84:^ 

Luton, Forsey v 18'i 

Maley r. Tipton 403 

Marrv. Marr 803 

Martin, Fleming v 43 

Martin, Cleveland 9 128 

Matthewson v. Sjpencer 424 

Mayer & Co. v. PuUiam 846 

Mayor and Aldermen of Somerville, Adams v 863 

Mayor and Aldermen of Memphis, Felts v 650 

McKee, Cruse v 1 

McLellan v. McLean 684 

McMannusr. The State 218 

McWhirter v. Cockrcll 9 

McFarland, Cope & Co. v 548 

McComb, Relfe & Co. v 558 

McLean, McLellan v 684 

Memphis & Charleston R. R. Co. v. Jon(»H 517 

Memphis and Little Rock R. R. Co v. Walker 4r>7 

Merritt, Cornelius & Davis v 97 

Mississippi Central and Tennessee R. R. Co., Bigelow v 624 

Mitchell V. Burton 618 

Moore V. Simmons 545 

Morgan v. Reed 276 

Morris, Tanner & Co., Neely « 505 



VI OASES REPORTED IN THIS VOLUME. 



Mt. Olivet Cemetery Co. v. Shubert 116 

Murphy, Weisinger v 674 

Myers, Elrod t? ^ 83 

Nashville and Chattanooga R. R. Co., "Woodruff v •, 87 

Nashville and Northwestern R. R. Co., Colcough r.... 171 

Neely v. Morris, Tanner & Co 696 

Nelson & Co., Patrick v , 607 

Nolen V. The State , 620 

14 ored 0. Adams ^.................•.. 449 

O'Sullivan r. Larry 64 

Overton V. Phelan «. 446 

Owens V. The State 455 

Park V. Cheek „ 461 

Parker V. Hall 641 

Parks V. Allen 628 

Patrick v. Nelson & Co 607 

Perkins v. Ament 110 

Phelan, Overton « 446 

Philips o. Henry & Shackleford 188 

Philips V, Sampson 429 

Pike, Criner » 898 

Pilcher & Cataulis v. Smith 208 

Planters' Bank v. Douglass 699 

Pollard, Fisher v > 814 

Porter, Lillard v 177 

Price & Bell, Scott v ., 682 

Pugh V, The State 227 

PuUiam, Mayer & Go. v 846 

Purcell, Lincoln o 143 

Reed, Morgan v 276 

Reeves v. Steele 647 

Relfe & Co. u. McComb . — .. 658 

Rippy r. The Stole 217 

Roberts r. The State 601 

Rogers V. Rogers 660 

Ross, Gibbs » 437 

Rowley, Ashburner & Co., Stocktey v 493 

Rucker ». "Wynne 617 

Ryland v. Brown 270 

Sampson, Philips v 420 

Sandeford v. Hess 680 

Sanders, Tipton v 690 

Saterfield, Coleman v 259 

Saunders v. Wilder 677 

Scott, Baker & Co. v. Bandy 197 

Scott, Dement v '. 367 

Scott©. Price & Bell 632 

Seav t?. Young 417 

Shubert, Mt. Olivet Cemetery » 116 

Simmons, Moore v 645 

Singleton, Gross v '. 67 

Smiley r. Gambill 164 

Smith and Wife, Pilcher & Cataulis « 208 

Smith V. Cozart 626 

Southern Bank of Kentucky, Hassell v 381 

Spencer, Matthewson v 424 

Stornes and Wife v. Allison 221 

State, Chapman 9 86 

State V, Bonner 185 



CASES BEPORTBD IN THIS VOLUME. vii 



SUte, Leetch r- 140 

State, Brown v 180 

State, McMannus v 218 

State, Rippy v 217 

State, Pugh v : 227 

State V. Green 856 

State, Owens v 466 

State, Isaac v 458 

State •. Crawford, McNeill & Co 460 

State, Roberts v 501 

State, Dement V 505 

State, Nolen v 520 

State, Catham v 558 

State, Tucker ft Oaks 9 ^ 555 

State, Trice r 591 

Steele, Gooley V ; 606 

Steele, Reeves v _... 647 

Stephens, Allison v • 251 

Stipe V. Stipe 169 

Stockley V. Rowley, Ashburner & Co 498 

Street & Co., Ware v « 609 

Swulsv. Bosbart 561 

Taylor v. Jones 565 

Terrill, Crittenden v 588 

Thomas, Wood v 160 

Thompsons. Thompson ^ 405 

Thompson v. Collins, Kellogg & Kirby 441 

Tomlinson v. DarnalU 588 

Tbreadgill v. Timberlake« 895 

Timberlake, Tbreadgill v 895 

Tipton, Maley ».. 408 

Tipton V. Sanders 690 

Tipton, Bullock V 408 

Tncev. The SUte 591 

Tucker & Oaks v. The State 555 

Tamer, Carter & PuUiam v 52 

m 

Yaocaro & Co., Bean v 492 

Yaden v. Drewry 812 

Venable & Co. v. Levick, Brother & Co 851 

Tenable & Co. 9. Curd A White 682 

Walker, Memphis and Little Rock R. R. Co. v 467 

Warec. Street & Co 609 

Weisinger v. Murphy 674 

Wells r. Griffin & Co 668 

Whiteon, Bates t? 166 

White, Belote v ;....; ^...708 

Wilder, Saunders v ^ 577 

Wilkinson, Lashley v r.... 482 

Williams v. Love 80 

Williams, Fogg v 474 

Williams v. Sonell 696 

Wilson V. Beadle 510 

Winchester, Cromwell v 88(> 

Wood©. Thomas - 160 

Woodruff V, Nashville and Chattanooga Rai Iroad Company 87 

Woods o. Burrough 202 

Wynne, Rucker v 617 

Toong, Seay V „ ^„ ^..^ 417 



rir- 



JUDGES OF THE SUPREME CODRT 



OF TBNKESSBS. 



Hon. ROBERT J. McKINNEY, - 
" EGBERT L. CARUTHERS, 



" ARCHIBALD WRIGHT, 



Knoxvills. 

Lebanon. 

Memphis. 



or 



JOHN W. HEAD, 

OALLATiy. 



TO THl 

HON. JOHN J. WHITE, 

^\is VBlumt 

IS RB8PBCTFULLT DBDICATBD, 

%$ a %t§t\men\ai 

OF MT HIGH AFFRXCIATION OT HIS PBOTOUHD LKOAL LKARNINO, 
RIPX 8CH0LAB8BIP, FURX 110RAL8, XXALTKD PATRIOTISM, 

AND OUUR'nOOl nAXDW AM A 
QKNTI.BMAN AND L.AWVKR. 

BEPOBTEB. 



CASES ARGUED AND DETERMINED 



IN THE 



SUPREME COURT OF TENNESSEE, 



FOR THE 



MIDDLE DIVISION. 



NASHVILLE: DECEMBER TERM, 1858, 



M. Cruse, Adm*r, t*. A. McKeb et ah 

K Will. Construction of. Power of appointment The will of David 
Baggerly contained the following clauses : " To my boloved wife, 
Bebecca, I give and bequeath all the lands owned by me, lying on tho 
south side of the Yadkin river, in Iredell county, during her life 
time; and also, all my household goods and effects of every descrip- 
tion, and also my negro women, Fanny and Rina, and a negro boy 
named James.*' *  * *• It is further my will and desire, that 
my negroes, Fanny, Rina and James, be disposed of by my wife Re- 
becca, with their increase, to the tohole^ or any one or more of my 
children she may think proper, at her decease," Upon these clausoi}, it 
is held : 

1. That the wife took an estate for life, with power to dispose of the 
property to one or more of the children, as she chose ; but, in the 
event she failed to exercise the power, or made an invalid appoint- 
ment, it would go, equally, to the children and grandchildren of the 
testator. 

2. That the power of appointment to children does not embrace 
grandchildren, and the exercise of it in their favor, is void. 

8. That the appointments of the wife, so far as they are in conformity 
with the power, are not void, because others, invalid, are included in 
her will. Those in accordance with the power will be sustained, and 
those not, rejected. 

4. That the property not diposed of in conformity with the power 
will be equally divided among the children and grandchildren, per 

1 



2 NASHVILLE : 



M. Gmse, Adm*r, v. A. ICcKee ei al. 



stirpes^ under the will of the testator, without regard to the property 
held under the valid appointments of the wife. It is not, as in a 
case oi intestacy, a case for collation of advancements. 

2. Samb. Same, Same. A power must he executed in good faith. A 
person clothed with a power of appointment, must exercise it in good 
faith for the end and purposes designed ; and, in all cases when a dis> 
crotion is given in the selection of the objects amongst a class, good 
faith must be observed, and if discriminations are made to secure 
advantage to the trustee, or a stranger, his act will be held viciouo 
and corrupt, and the appointment declared void. 

^. Power. Fraxid in its exercise. Question reserved If fhtud inter- 
venes in the exercise of a power of appointment, does it vitiate the 
entire acts of the trustee, or only such appointments as are fraudu- 
lent? 



FROM LINOOLN. 



This cause was heard before Chancellor Biblet, at 
the August Term, 1858. The facts are stated in the 
opinion of the Court. 

John M. Bright, for the respondents who contest the 
appointment, argued : 

1. The bequest in David Baggerly's will, to Be- 
becca during life, with power of disposition to the whole, 
or any one or more of his children, was a power 
coupled with a trust, which she was required to execute 
in good faith. Hill on Trustees, 85, 86, top pages. . 

2. In default of the exercise of the power, the ob- 
jects of the trust would all take, in equal parts, under 
the will of David Baggerly. Hill on Trustees, 87 and 
note; also, 88, 89, 90 and 91; also, 721, 722 and 
728. 



DECEMBER TERM, 1858. 8 



M. Cruae, Adm'r, v. A. McKee et <U, 



8. If the power of distribution or appointment be 
improperly exercised, the objects of the power will take, 
eqnallj, as in default of any appointment* Hill on 
Trustees, 723; Kemp v. Kemp^ 5 Yes., 849; Aleyn t. 
Belcher, 1 Leading Cases in Eq. by Hare k Wallace, 
322-326 and notes. 

4. Again, we insist that the execution of the trust 
is Toid, because the widow, by will, did not pretend to 
dispose of the slaves by virtue of her authority as 
trustee, but disposed of them. in her own name as her 
absolute property. If she held the property in trust 
she could, alone, communicate the title in trust. If, be- 
ing a trustee, she conveyed by deed or will in her 
own name, it would communicate no title to the donee 
or legatee, and would leave the property, as in default 
of any execution at all. A trustee can exercise a power, 
alone, as trustee. See Story's £q. Jur. 

Kerchbval, for the other respondents, cited and com- 
mented upon the following authorities: Sugd. Pow. 80; 
Jarnagin v. Conway , 2 Hum., 51 ; Sug. Pow., . 42, 58 
and 54 ; also, pages 877 and 880 : Boetick v. TTmton, 
ISneed, 588. 

Carutabrs, J., delivered the opinion of the Court. 

This bill is filed as administrator with the will an- 
nexed of Rebecca Baggerly, deceased, for the construe* 
tion of her will, upon the interpleading of the parties 
whose interests conflict. The difficulty arises upon the 
exercise of a power by the widow, given to her, in re- 



NASHVILLE : 



M. Cruse, Adm'r, «. A. McKee et at. 



lation to the disposition of certain slaves in the will of 
her husband. 

David Baggerly, a citizen of North Carolina, made 
his will in 1816, and the same was admitted to pro- 
bate by the County Court of Iredell, in 1819, It con- 
tains these two clauses, upon which the difficulty aiises. 

"To my beloved wife Rebecca, I give and bequeath 
all the lands owned by me, lying on the south side of 
the Yadkin river, in Iredell county, during her lifetime, 
and also all my household goods and effects of every 
description, and also my negro women, Fanny and Rina, 
and a negro boy named James." 

In a subsequent clause, he says: "It is further 
my will and desire, that my negroes, Fanny, Rina, 
and James, be disposed of by my wife Rebecca, with 
their increase, to the wkolcy or any one^ or more of 
my children she may think proper j at her decease.'' 

In March, 1856, she made her will, and died in 
liincoln county, Tennessee, to which she had removed 
:many years ago. These slaves, or their increase were 
idisposed of in her will, unequally, among such of her 
jehildren as were then living, and to some of the grand- 
children. Some were to be sold, and the proceeds to go, 
partly, to grandchildren. 

She had a power of appointment under restrictions ; 
it was to be, to any one or more of her children. Her 
power was coupled with an interest, as well as a trust. 

A power of appointment to children does not em- 
brace grandchildren, and the exercise of it in their 
favor is without authority, and void. Jarnagin v. Cory- 
way^ 2 Hump., 50, and authorities there cited. This is 
not disputable. But the more difficult question here is, 



DECEMBER TERM, 1858. 



M. CroM, Adm'r, «. A. McKee et al. 



whether that ayoida the appointments of her will to 
children, bo as to leave the whole property undisposed of 
by her, or, is it good pro tanto; and if so, how shall 
the balance go? This does not fall under ihe head of 
illtisory appointments. That only applies to & case 
where one invested with a power to apportion property 
amongst a class, with full discretion atf to tha amount 
to be given to eaeh, gives to one a merely nominal 
share. That will be 9et aside as UluMory^ as a frand 
upon the donor of the power, as he certainly intended 
by making all the objects of his bounty, or of the 
power, that each should have a iuhtiantial share* 1 
Hare & Wallace, L. C. Eq., 832. But in this case 
ahe had full and express power to give all to one, or 
two, or more, with an unrestricted discretion* It was 
not to his children as a class, without distinction, but 
she might exclude one or more if she chose, entirely. 
Not so in cases to which illusory appointment applies ; 
though in these cases discriminations may be made, yet 
not to the entire exclusitm of any one, or a nominal 
share to one* 

In this case the widow's estate is for life only, by 
implication with power to control the remainder to a 
limited extent, and in a certain mode. The limitation 
was to his children* They, as a class, had a vested 
joint remainder under the will ; but power was given to 
her to defeat this interest of any one or more, by the 
exerciae of the power given, but in case she tailed to 
appoint, or made an invalid appointment, then the prop* 
erty would go to all, equally^ under his will, at her 
death. 

There is no doubt but that a person having a power, 



6 NASHVILLE : 



M. Cruse, Adm'r, v. A. MoKoe et al. 



must execute it in good faith for the end and purposes de- 
signed, or it will be void. In the leading ease of Aleyn 
V- Beleher^ 1 White and Tudor, 290, this principle is illus- 
trated, and in the notes, the cases are collected. In that 
case, the power of appointing was given, but it was exercised 
in favor of the wife, upon an agreement on her part that 
she should receive onlj a part as an annuity, and that the 
remdue should be applied to the pajment of the hus* 
band's debts. This was held to be a fraud upon the 
power, and set aside, except so far as related to the 
annuity, A Court of Equity will guard the exercise 
of these powers, so as to prevent any fraud upon 
the donor of the power. In all cases where a discre- 
tion is given in the selection of the objects amongst a 

class, good faith must be observed, and if discrimina- 

• 

tions are made to secure advantage to the trustee him- 
self, or a stranger, his act will be held vicious and 
corrupt. If there be a secret understanding that the 
appointee shall assign a part of the fund to a stranger, 
or pay the debts of the appointor, or loan him the 
fund, the appointment would, thereby, be vitiated and 
declared void. Notes to the same case, :295, citing 8 
Iredeirs Eq. R., 55, 59; 1 Sim. 343, and other au- 
thorities; alsoj Bostich v. TFtw/on, 1 Sneed, 538. Any 
exercise of such a power in fraud of the original in- 
tention with which the power was created, would, i\\ 
equity, render the appointment void. 

A question sometimes arises, as to the extent the 
Courts will go in setting aside fraudulent appointments ; 
whether to the extent of the fraud, or entirely. Bat 
that question does not come up in this case, as there ia 
no pretence that any advantage was. received, in this 



DECEMBSB TERM, 1858. 



K. CniM, Adm'r, «. A. McKee et oL 



ease^ by the appointor to herself or any one else, to 
induce the appointment. The objeetion is, that she un- 
dertook by mistake, or miseonstroction of her authority, 
to give a part of the property to grandohildren. There 
was no fraud contemplated by her, n<Nr can it be so 
considered. The rules in relation to fraudulent appoint^ 
menta do not, then, apply to the case, but it is, simply^ 
a question of the yafidtty of its exercise, so far as it 
is ia favor of grandchildren. 

The result is, that her appointment, so far as it is 
exercised in favor of her children, is valid, and the ap* 
pointment to her grandchildren is void. 

The slave Tillman, given at valuation in the third 
clause, to her daughter, Mrs. MoKee^ is not properly 
disposed of, as the amount of the valne is distributed in 
a manner not authorised by her power. The disposi- 
tions in clauses 4, 5 and 7, being to children of the 
donor, are good; so are the bequests of the eighth 
clause, as that relates to property not embraced in the 
trust, that being limited to the slaves. 

A valid appointment, though in the same deed or 
will with others not valid, will be maintained. 2 Sug. 
on Pow. 87. 

The other slaves, not disposed of by the widow nn- 
der the trust, must be distributed, equally, among all the 
objects of the power, under the will of David Baggorly. 
We have felt strongly inclined to produce equality, by com- 
pelling those to account who have received slaves by the 
valid exercise of the discretionary power confided to the 
widow, but have been unable to find any principles to 
authorize it. She had the express power to give the 
whole to ''any one or more/' and exclude the others. 



8 NASHVILLE : 



H. Orufle^ Adm*r, v, A. McKee €i a/. 



She could have given all to one. All would ha^e been 
equal on failure to exert the power, or in case of an 
invalid or void exercise of it. The unrestricted power 
of selection and discrimination entrusted to her, enabled 
her, legally, to produce any inequality she desired. So 
far then as she has appointed, that must stand, with its 
advantages to the objects selected. As ta that portion 
of the property she has left untouched by her power^ 
it must pass under the will of the testator, as a vested 
remainder, exempt from the contingent power of appoint- 
ment given to her over it, to all his children, and their 
representatives, where any are dead. It is not a case 
for collation of advancements, as in oases of intestacy; 
but the right is derived from the will. All the chil- 
dren then are embraced, without regard to what any* 
may have received under the exercise of the power, that 
is, from a different source. Sug. on Pow., 506. 

Where a discretionary power is not exei'eised, the 
whole of the objects who are within it, will take in 
equal shares. Hill cm Trustees, 70-«492. S» it musl 
be, where it is not exercised as to part, in the^ dis^ 
position of that. 

The decree of the Chancellor will be reversed, and 
decree here in accordance with this opinion* 



DECEMBER TERM, 1858. 9 



George F. McWhirter eial. v. M. B. Cockrell. 



Gbobqb F. McWhirtbr et ah v. M. B. Cockrell. 



1. BoADB. Practice, Contest to be decided by the Ckmrt, mnd not nth- 
mitted to a jury. In contests about roads, the jurisdiction, in the 
first instance, is given, ezclusiTely, to the County Court; and, upon 
appeal to the Circuit Court, to the Judge. It is the duty of the 
Circuit Judge to hear and determine the controversy, and not shift 
the labor and responsibility from himself to a Jury. 

2. Same. When to be established, Mights of the community and of in- 
dividuals. Whenever the necessity for a road is imperative, it is the 
duty of the Court to establish it, although injurious to individuals, 
upon making compensation for the injury, as provided by law. This 
is to be done with as little injury to private property as practicable, 
and only when the advantage to the public is sufficiently great to out- 
weigh the private injury. The Court should look, carefully, to the 
interest of all citizens, and never exercise the right of eminent 
donuiin, unless it is clearly and imperatively demanded for the public 
good. 



FROM DAVIDSON. 



This cause was tried upon appeal from the County 
Court, at the September Term, 1858, of the Circuit 
Court, Baxter, J., presiding. The decision of the County 
Court was reversed, and the petitioners appealed to this 
Court. 

N. S. Brown, Demoss, and M. M. Brisk, for the 
petitioners. 

B. J. Meigs and Andrew Ewing, for the defendant* 



10 NASHYILLE : 



George F. McWhirter ei aL «. M. R. Cockrell. 



Cabuthers, J. delivered the opinion of the Court. 

This is a contested road case. The plaintiffs are 
petitioners for a county road, to pass over the lands 
of the defendant, in Robertson's Bend, on Camberland 
rifor, about six miles from Nashville. The petitioners 
live in White's Bend, on the opposite side of the 
river from Bobertson's Bend, and propose to establish a 
ferry, by which to pass over to the bank of defendant, 
and then over his land in the direction of Nashville, 
about the distance of . 

The defendant has the whole bend enclosed and 
arranged for stock-raising at considerable expense, and 
resists the application to run a public road through it, 
because it would inflict irreparable injury upon him, 
without any corresponding advantage to the public. 
Much proof was introduced to support the positions 
assumed on both sides — the public demand for the road 
on the one part, and the private injury on the other. 

The County Court decided in favor of the petitioners, 
and ordered the laying out and establishment of the 
road; but upon an appeal to the Circuit Court that 
judgment. was reversed and the petition dismissed, and an 
appeal to this Court. It is now for us to decide upon 
the evidence presented in the bill of exceptions, which 
tribunal gave the proper judgment. 

It is assigned for error here, first, that the Circuit 
Judge refused to refer the question to a jury, instead 
of passing upon the evidence himself. We think he did 
not err in this. Such a practice has never been 
adopted, and it is not contemplated by any act of 
Assembly on the subject of roads. It is not a proper 



DECEMBER TERldt, 1858. 11 

G^rge F. HcWhirter etoLn-H. B. Cockrell. 

matter for a jury. Tlie jurisdiction is given, exclusively, 
to the County Court in the first instance, and then, 
upon appeal to the Circuit Court, to the judge. These 
contests are often of the most exciting character. They 
generally array many against one, and arouse ifhoie 
communities against a single individual. It would be 
unsafe, in such eases, to leave them to a jury of the 
vicinage. At all events it would be more safe and 
appropriate to intrust them to an impartial, unexcited 
Court. But it is enough that the Legislature has con- 
fided all such questions to the Courts, without any pro- 
visions for a jury. It would be an evasion of duty 
for a Judge to shift this labor and responsibility from 
himself to a jury, and, probably, it would be held erro- 
neous to do so. 

The public is entitled to all necewary roads and 
thoroughfares, and it is the duty of the Courts to grant 
them, wherever they are needed, although they may be 
injurious to individuals, upon making compensation for 
tho injury, as provided by law. This is to be done, 
however, with us little injury to private property as 
practicable. It does not follow that a road is to be 
granted because a portion of the people may desire it; 
not even in every case where it is manifest that it 
would be of some convenience or advantage to them. 
The advantage to the public must be sufficiently great to 
overbalance the private injury. That is, in a case where 
the necessity is not imperative, very serious harm will 
not be done to individuals by the establishment of a 
public road. In the exefcise of this very delicate and 
important jurisdiction, by which private property is taken 
tor public use, the Courts should look, carefully, to the 



12 NASHVILLE : 



George F. McWhirter et at. v. M K. Cockrell. 




interests of all the citizens, and never exercise the right 
of eminent domain unless it is clearly and urgently de- 
manded for the public good. That a few miles in dis- 
tance would be saved, or a road some degrees better 
provided for a portion of the community, is not a suf- 
ficient reason, in all cases, to justify the running a road 
over private property. The Courts should wisely and 
fairly judge of each case upon the facts presented. On 
the one hand the public prosperity and convenience 
should not be retarded because individual interests might 
be in the way; and, on the other, private rights 
ought not to be infringed without manifest necessity. 
This would not only be unjust to those who would be 
immediately affected by it, but to the whole community, 
who would have to be taxed to pay the damages that 
might be assessed for the appropriation of private prop- 
erty to public use. This must necessarily be done, 
because the constitution, as well as the acts of Assembly, 
require it. So a good many considerations are involved 
in the question. 

Both parties have used every exertion to present all 
the facts in this case calculated to assist the Courts 
in arriving at a correct conclusion. We have a map 
of the two bends, the river, adjacent turnpikes, and 
other public roads and ferries. The situation of all the 
families in '^White's Bend,'* together with the opinions 
of men as to the necessity of the proposed road for 
each inhabitant. From all which it appears that a few 
of the families would be benefitted by shortening the 
distance to Nashville, provided they succeeded in getting 
a good ferry kept up. But taking all the circumstances 
into view, as they are presented in the proof, we are 



DECEMBER TERM, 1858. 18 



George F. McWhirter etal.v. M. B. Cockrell. 

satisfied that a majority of the people in this bend would 
not only receive no advantage by opening the road, but 
that it would not be used by them if opened on the 
opposite side of the river. The proximity of two good 
turnpike roads — the one leading from Charlotte to Nash- 
ville, and the other to Hyde's, Ferry without much 
increase of distance, would prevent very much use of 
the contemplated road, even if it were opened and a 
ferry kept up. The character of the ground near the 
river in Robertson^s Bend would make it a bad road in 
the winter and spring seasons, and some of the wit- 
nesses say almost impassable— entirely so, without throw- 
ing up an embankment for three or four hundred yards 
from the river, to an elevation of three or four feet, 
and building a bridge over a slough or ravine. 

Some of the witnesses are of opinion that the road 
would be of vital importance to the families in 
White's Bend" — at least tor some of them — and others 
think it would be of very little or no benefit to them. 
Some say that the ferry to be established upon the new 
road, at the head of Robertson's Island, would be safe 
and convenient, and others, that it would be exceedingly 
dangerous, and, in high water, almost impassable. So 
we are left, as in most cases of this kind, to judge 
between them upon the reasons they assign and the 
facts they state. The proof shows that there are from 
twenty to forty families in the bend — some of them 
renters; that most of them, by proper roads leading to 
the turnpikes on either side, could reach Nashville more 
easily and safely than by the proposed road, though the 
distance might be somewhat greater to a majority of 
them. It is clear that the general public have no 



14 NASHVILLE : 



Martha A. P. Cardwell v. F. R. Oheatham et aL 

interest in the question, but that it would be confined 
to the small community in the bend. We are not 
satisfied from the proof that the benefit to them would 
be sufficient to authorize the injury to private property 
that would result. The County Court, in 1850, discon- 
tinued a county road through Robertson's Bend, upon the 
report of a jury of yiew, and we can see no sufficient 
reason for opening it again at present. 

We concur with the Circuit Judge in his conclusion 
ijqpon the facts, and affiim his judgment disallowing the 
petition. 



Martha A. P. Cardwbll v. F. B. Cheathah et al 

1. Tbttst and Trustxe. Husband and wife. Sale of real estate aetUsd 
upon the wife. Privy examination of the wife. If real estate is cod- 
veyed by the husband to a trustee, for the sole and separate use of the 
wifei with power to the trustee, at her request in writing, to sell and 
convey the same, and reinvest the proceeds as she may direct, a sim- 
ple request in writing is sufficient. A formal power to the trustee, 
accompanied with the pHvjf examination of the wife, is not required. 

2. 8amx. Same. Same. Breach of Trust. Fraud. It is the duty of 
both the trustee and purchaser, in the event the property is sold, to 
see that the fund is paid over to the trustee, and reinvested for the 
benefit of the wife, as directed by the teims of the trust. And if, in 
violation of the provisions of the deed, the purchaser contract with 
the husband, pays him the purchase money, and, upon the written 
authority of the wife, the trustee conveys title to him, such sale and 
conveyance is a breach of trust — a fraud upon the power, and will, 
upon the application of the wife, be set aside. 

a. Samk. Same. Same. Innocent purchaser If the purchase is made 
bima fide, without notice of the breach of a trust reposed in the 



DECEMBER TERM, 1858. 15 

Marthft A. P. CMdwell v. F. B. Chefttham et oL 

trustee, the parcbaser \b not bound to see that the purchase money i» 
reinvested in other property for the use of the wife. 

4. 8am K. Same. Same. Same. How this defence to be made. If a 
party rely upon the defence that he is an innocent purchaser without 
notice, he must set it out, specifically, by plea or answer; and estab- 
lish the facts relied on by proof. 



VROM DAVIDSON. 



At the May Temi, 1858, Ohancellor Frierbon dta- 
BUBsed complainant's bill. She appealed. The lot was 
sold by Davis to Johnson, but no deed appears to have 
been made to him by Daris. 

Briek & Cox, for the eolnplainant, argaed: 



let The sale by Cheatham to Davis is void, com- 
plainant at the time being a f^me cwert^ and not hav- 
ing been privily examined. Ooppedge v* Threadgillf 8 
Sneed, 677. 

2d. Sappose complainant had the power nnder the 
deed to sell the lot, stiU she had no power over the 
fond, and Cheatham could not appropriate it in any way 
except as directed by the deed. He had no power to 
pay the funds to complainant's husband. The deed ex- 
pressly states that if the land is sold, Cheatham is to 
re-invest the proceeds, and of course he had no power, 
only as given by the deed. 3 Johnson, ch. Rep. 78, 1 
W. k T. Cases in Equity, 66, 67, 76, 77, 869, 870, 
878, 876, 876. 

8d. Cheatham was and is the Clerk of the County 
Court, and therefore had no power to acknowledge his 



16 NASHVILLE : 



Martha A. P. Card well v. F. R. Cheatham et at. 

own deed. As to the liability of Johnson, see Meigs 
Dig, 244, 245. 



EwiNG k Cooper, for the defendants: 

Ist. The allegations of fraud being fully met by the 
answers, and not sustained by proof, the only questions 
that can arise in the case are questions of law. 

2d. The trustee is authorized to " sell and convey '* 
the lot "at her (Mrs. C's) request in writing." A sim- 
ple request in writing, without witnesses, or privy ex- 
amination, would meet the requirements of this provision. 
The attestation of two witnesses to the act, was unne- 
cessary except to perpetuate the evidence of its occur- 
rence. The fact that these witnesses have not been ex* 
amined by the complainant, demonstrates that the alle- 
gations of fraud and coercion are utterly without foun«> 
dation, even if such demonstrations were required. 

3d. The deed of trust was, manifestly, drawn up for 
the express purpose of meeting the very contingency 
which has happened; a sale and receipt of the purchase 
money by husband and wife, without the intervention of 
the trustee. The sale, as we have seen, is authorized 
at the wife's ^^ request in writing.'' The reinvestment 
of the proceeds is also to be "a« she may direct 
in writing^'' and the deed expressly provides that the 
trustee is to be responsible "/or fraud or gross neglect 
of duty onlyj and not for any mismanagement of said 
Martha A. P. Card well." Complainant has suffered loss, 
if at all, by her own act. 



DECEMBER TERM, 1858. 17 



Martha A P. Card well v. F. B. Cheatham et al. 

4th. It is now the well settled rule in England and 
in this countrj, that a purchaser is not bound to see 
to the application of the purchase money, when the 
conveyance is made in conformity with the trust, and 
without any fraud or collusion. 1 W. & T. Lead. Cases 
in Eq. 58-76, and cases cited. 

Wright, J., delivered the opinion of the Court. 

On the 1st of March, 1852, James W. Cardwell,- 
the husband of complainant, made a conveyance by deed 
in fee simple, to the defendant, Felix U. Cheatham, of a 
lot in the city of Nashville. 

The deed, upon its face, was in trust, that said 
Cheatham should hold the legal title of the lot for the 
sole and separate use and benefit of complainant; the 
same not to be liable to the control, or for any debt, 
or responsibilities ^o be contracted or incurred by the said 
James W. Cardwell, and that the said Cheatham should 
permit her to use, occupy, rent out, or improve the lot 
as she might think proper; and at her request in wri- 
ting, to sell and convey the same, and to re-invest the 
proceeds as she, in writing, might direct; and that the 
property acquired by the re-invcstment should be held 
by the trustee, in like manner as the original entate ; 
and that said trustee should be responsible only for 
fraud or gross neglect of duty, and not for any misman- 
agement of complainant, in the premises. 

On the 17th day of November, in the same year, 

the said Cheatham, in his character of trustee, signed 

and executed a deed of C3nveyance, in fee simple, of 

said lot to the defendant, A. L. Davis, for the consid- 

2 



18 NASHVILLE : 



Martha A. P. Cardwcll v. F. R. Cheatham ei al. 



eration of $300, as stated in the deed, which is therein 
Jidmitted to have been received by said Cheatham. At 
the foot of the deed to Davis, and upon the same pa- 
per, the complainant executed the following writing : "It 
is at my desire and request that F. R. Cheatham, trustee, 
has made and executed the above deed, and I hereby 
ratify and confirm it in every respect; and I hereby 
warrant and defend the title to said lot specified in the 
abovo deed, against the right, tillo, interest or claim of 
all and every person or persons whatsoever. In witness 
whereof, I have hereunto sot my hand and seal, this the 
17th of November, 1852. 

MARTHA A. CARDWELL, [l. s.] 

Test: John Coltaut, H. G. Bennett. 

Complainant's husbtind has since departed this life, 
and she now brings this bill against defendants, Cheat- 
ham, Davis and Johnson, to recover this lot. 

Among other things, stie charges that her husband, 
in violation of the express terms of the conditions of 
gaid deed of trust, and in fraud of her rights, sold said 
lot to the defendant, Davis, for ?300, and received the 
pay, and that said Davis and Cheatham fraudulently 
combined with said James W. Cardwell to deprive her 
of the benefit of said deed, and that said Cheatham 
executed a deed to said lot to defendant Davis, he, at 
the lime, well knowing the condition of her title, and 
permitted said James W. to use and consume the pro- 
ceeds thereof, and failed to re-invest the same as direct- 
ed in said deed. 

She also alleges, that she was forced to sign the 
writing at the foot of th€ deed, and did so in igno- 
rance of h«r rights. 



DECEMBER TERM, 1858. 19 



Martha A. P. Curdwcil r. F. K. Cheatham et al. 



The defendantSy Davis and Cheatham, in their an- 
gwers, deny the charges of fraud and coercion, in detail ; 
and Davis avers that the title was made in accordance 
with the terms of the trust deed, and that the com- 
plainant*8 rights were fully protected by her trustee^ 
He admits, however, that the trade for the lot wa» 
made with complainant's husband. 

The defendant, Cheatham, states in his answer, that 
his name was used as tristce in the deed without his 
knowledge or assent ; that he has no recollection of ever 
seeing it, until he saw it as an exhibit in complainant's 
bill. lie, however, admits his signature to the deed, to 
Davis, but has no recollection of ever executirg it, and 
is certain he never saw complainant to know her, and 
never received one dollar of the consideration recited in 
the deed. 

He supposes that complainant's husband, for his owa 
purposes, used his name in the first deed without con- 
sulting him, and that ho afterwards brought the deed, to* 
Davis, with his wife's authority appended, and requested 
him to execute it, stating, doubtless, that it was all 
right, and that it was a mere matter of form — the le^ 
gal title having been conveyed to him, and that he 
signed his name accordingly. That ^^ his whole and sole 
agency in the business was the execution of the deed 
to Davis when it was brought to him, with complain- 
ant's written authority appended." 

lie states further, that he has no doubt complain- 
ant's husband resorted to the plan of conveying the lot 
in trust for his wife, to protect it from his creditors, 
and with such provisions as enabled him, readily, to dis- 
pose of it whenever a fit opportunity presented itself. 



20 NASHVILLE : 



Martha A. P. Cardwell r. F. R. Cheatham et al. 



Cheatham was the Clerk of the County Court, and 
the deed of trust was duly acknowledged by James W. 
Cardwell, before his deputy, upon the day of its date, 
And duly registered the next day. 

No proof was taken in the cause. The Chancellor, 
in his decree, denied complainant any relief, and dis- 
missed her bill. 

In this, we think, he erred. We do not place our 
•objections to the decree upon any want of formality in 
the execution of the power. It may be conceded that 
the wife's request was sufficient, and that it was given 
simultaneously with the deed, and as a part of it; and 
that if it were not for other difficulties in the way, a 
valid title would have passed. 

It may also be true, that if Davis, in this transac- 
tion, had occupied the position of a bona fide purchas- 
er, without notice of a breach of the trust reposed in 
Cheatham, he would not have been bound to see to the 
Application of the purchase money, by its re-investment 
in other property, for the use of complainant. 1 W. & 
T. Leading Cases in Eq., and notes to Elliott v. Mer- 
rymafij 66, 67, 76, 77; Wormley v^ Wormley^ 8 
Wheat. 421. 

We may concede too, as we do, that Cheatham is 
free of all intentional wrong. We are obliged to take 
it that he accepted this trust, and that he and Davis 
had full knowledge of the terms of the deed. Indeed, 
Davis* title depends upon his acceptance. Then what is 
the nature of this transaction ? It was the duty of the 
defendant, Cheatham, as the trustee of the complainant, 
upon her written request, personally, himself, to sell this 
lot, and to receive the proceeds, and re-invest it in 



DECEMBER TERM, 1858. 21 



Martha A. P. Card well t\ F. R. Ohcathnm ei al. 



Other property, under her written directions. A sale by 
the husband was totally unauthorized by the trust. The 
trustee could not, legally, pay the purchase money to 
him, or permit Uavis to do so, without a plain violation 
of the terms of the deed. To do so would be a gross 
neglect of duty, and if allowed, would, in effect, annul 
the trust altogether. 

We have no evidence, nor is it alleged, that the 
husband received this fund with the complainant's con- 
sent. But this could make no difference ; for by the 
very terms of the deed, he was to have no control 
over it. Neither was she to have the fund produced by 
the sale of the lot. It was to be re -invested by the 
trustee in other property. She was to w«6, occupy^ 
rent out^ or improve the original or substituted property 
as she might think proper ; and for any mismanagement 
on her part, as to these things, the trustee was not to 
be liable. But the body of the estate, the fund itself, 
was not to be consumed or destroyed, but the same was 
secured, in the hands of the trustee, against the power 
of the husband, and weakness of the wife. Methodis 
Epucopal Church v. Jaques : 3 Johns. Ch. R. 78 ; 
Notes to ffulme v. Tenant^ I W. & T. Leading Ca- 
ses in Eq., 369, 370, 373, 375, 376. 

Now what has been done in this case? and what 
part did Cheatham and Davis take in it ? Why, sim- 
ply, the husband, himself, sold the lot to Davis, and 
received and used the money, and Cheatham, simply, 
signed the deed to carry out the husband's sale. There 
has been no re-investment ; nor was the sale made for 
any such purpose, but exclusively for the husband's use. 
And, both Davis and Cheatham knew it at the time. 



22 NASHVILLE : 



Martha A. P. Card^vell r. F R. Cheatham et at. 



and became directly parties to it, the one by making 
the purchase and paying the money, and the other by 
signing the deed to carry it out. This is the plain 
meaning of the answers. If so, there was a palpable 
breach of trust, in fraud of the power, and Davis can- 
iiot, in equity, be allowed to hold property thus ac- 
quired. 

The principles laid down in the cases of Wormlet/ v. 
Wormley, 8 Wheat. 421, and ChampUn v. Hoight^ 10 
Paige 274, are, it seems to us, decisive against this 
purchase. 

To be sure, in the notes to Elliott v. Merryman^ 1 
W. & T. Leading Cases in Eq. 77, the case in Paige 
is stated to have been reversed, on another point, upon 
appeal. (7 Hill 246.) 

The defendant, Johnson, can be in no better condi- 
tion. There is nothirg in this record to show that he 
is an innocent purchaser. There is no plea or answer as 
to him, and no proof. N) deed is shown as to him, or 
that he paid anything. Neither he nor any of his co-de- 
fendants have given him the attitude of an innocent pur- 
chaser. 1 Meigs Dig. 244^ 245. 

Decree reversed. 



DECEMBER TERM, 1858. 23 



Enoch GunniDgham r. Edgefield and Kentucky Railroad Company. 



Enoch CuNNmoHAM v. Edgefield and Kentucet Rail* 

&OAD Company. 

1. Railboad Company, (hiultiional subscription oj sUtck. yotice. If 
a party, who hiu* subscribed stock to a railroad company, ctm renounce 
And abandon his Mibscriptioa, it can be only done by notice to the 
agent, or to the company, in proper time. 

2. Samk. Samr, Frtunl tituitei* subscription, ij ncdicc is ^irett in a rra- 
sonable time. If a Hubst-ription is fraudulently obtained from a per- 
son, and he is injured thereby, the contract of ^subscription would be 
void, although the name of the subscriber was ucct^pted and entered 
upon the stock-book of the coni]>anT, unless, by his failure to notify 
them in a reasonable time after the fraud was discovered, the com- 
pany would be injured by its reh'a>e. 

C Samr. Sfttne. Kffcci of parol cotuUtion. A parol condition to the 
subscription of stock to a railroad company will not, if vio1ut(Hl, in- 
validate the subscription. bo<rause it forms no part of the written con- 
tract of the parties. 

4. Kaiik. Same. Kfferf of <u< itmor^U mistake. Contract, If A party 
is induced to take stock in a railroad company by false representations 
which are not fraudulent, and which form no part of the contract of 
subscription, he is not entitltxl to be roHeviHi from the payment of the 
amount of his subscription. But if he acts upon kucIi reprc^on tat ions 
to his injury, he is entitled to relief, iil though they may have beea 
innocently made. 



FROM DAVIDSON. 

Tried at the February Term, 1868, before Judge 
Baxter. Defendant appealed. 

A. L. Demoss, for the plaintiff in error. 

Reid, for the plaintiff in error. 

1. We contend that the subscription of Cartwright 
was a condition preced^mt to the taking of stock by 



24 NASHVILLE : 



Enoch CunDingbam v. Edgefield and Kentucky Railroad Company. 

Cunningham. That is clear. Cunningham avers in his 
plea that he would not take stock unless Cartwright did 
first, and then he would take the same number of shares. 

Now it is clear that if the subscription of Cunning- 
ham was a verbal contract, not reduced to writing, he 
would not be bound. I understand the law to be, that 
"where the condition is precedent, it must be strictly 
performed in every particular, in order to entitle the 
party, whose duty it is to perform it, to enforce the 
contract against the other party." Stortf on Contracts j 
§ 32. "Nor does it matter that such condition is dif- 
ficult or foolish ; for, if it be so, it is the fault of the 
party who engages to perform it, and he should suffer 
the consequences." Ibid, 

But I wish to say, that the condition imposed by 
Cunningham may not have been foolish or unreasonable. 
He and Cartwright were possessed of about the same 
wealth, and were pretty much the same character of 
men, and he might very well have said that I can bear 
as much as he, and I would prefer to risk his judgment, 
as to the propriety or profit of taking the stock, than 
to trust my own. Or he may have been so situated 
(and such was the fact) that, because of their propin- 
quity, if the road was a peculiar benefit to the 
one, it would be to the other. He might have been 
very unwilling to have trusted the judgment or will of 
Enoch P. Connell. Mr. Council might • be, in his 
opinion, inconsiderate in his acts, or he might have pos- 
sessed large real estate about Goodlettsville, and have 
been very willing and very able to take one thousand 
shares instead of twenty, 

2. But the subscription was in writing. Does thai 



DECEMBER TERM, 1858. 25 



Bnoch CanDingham v. Edgefield and Kentucky Railroad CoD'.pany. 



preclude as from proving the condition upon which it 
-was made? We think not. 

If Mr. Cunningham was induced by fraud to sub- 
scribe, it is clear that the fraud could be shown by 
parol, and the contract would be null. 

Mr. Story, in his work on contracts, goes further. 

In section 675, he lays down the law as follows: 
^^ Parol evidence will also be admitted to show that an 
instrument is void, and never had any legal existence or 
binding Jorce.*' In the conclusion of the same section he 
says: "Whatever would vitiate the contract ab initio^ may 
be given in evidence to invalidate a written contract.'' 

Now, if the allegations of the plea, or the facts 
proved on the triaU be true, the road will have perpe- 
trated a most wicked fraud on Mr. Cunningham, if he 
be held responsible on this subscription. It was well 
known he would not subscribe unless Cartwright did. 
The road, by its agent, pretends that it is authorized 
to subscribe Cartwnight's name, and does do it. Cun- 
ningham, in the act of signing, asks if he may feel 
assured that his name is there in good faith. lie is 
told, yes. Cunningham signs his name, and the trap is 
let down upon him, and he h told you are ours. If 
this is not fraud, what is ? Redfield on Railways, page 
70, and note 2. 

In conclusion, we doubt, if the subscription under any 
circumstances had been binding, whether it was not 
revoked before it was accepted. The persons who got 
his signature were mere volunteers, and did not hand in 
the names, or, if they did, they were not accepted until 
long after Mr. Cunningham had said he would not be 
bound by his subscription. 



26 NASHVILLE : 



Enoch Cunningham v. Edgefield and Kentucky Railroad Company. 



EwiNG & Cooper, for the defendant in error. 

The rejection of evidence as to the organization of the 
railroad company was certainly proper in the absence of a 
special plea, because this company was already organized 
when defendant subscribed. His subscription "recognizes 
their proper organization, and is an estoppel on him. 
Redfield on Railways, 9, and 85; 5 Vermont. 

The action Connell, as to Cartwright, was un- 

guarded, but not fraudulent, and the jury found that it 
operated no injury to Cunningham. False representa- 
tions, if not fraudulent and forming no part of the 
contract itself, are immaterial, (Chitty on Contracts, 682,) 
more especially as to written agreements. Chitty, 683 j 
10 M. & W., 147. 

The jury are the judges as to materiality. Chitty, 
684. Fraud and misrepresentation alone are not suffi- 
cient to invalidate a contract. There must also be 
injury resulting to the person complaining. 1 Meigs' 
Digest, 389; 2 Parsons on Contracts, 268. 

It was necessary for Mr. Cunningham to give notice 
to the company, when he discovered the fraud, that he 
would avoid the contract. It was a conditional contract, 
and the company, in locating their route, were governed 
by these conditional subscriptions. They were, certainly, 
innocent and Ignorant of any fraud on Cunninghaia. If 
he intended to avoid his obligation, he ou2;ht, certainly, 
to have notified the railroad company soon after he dis- 
covered the fraud, and his failure to do so was a waiver 
of his right. 2 Parsons, 278. 

The failure to make payment in money of fifty cents 
on the share, at the time of the subscription, does not 



DECEMBER TERM, 1858. 27 



Enoch Cunninp^ham v. Edgefield and Kentucky Railroad Company. 



give defendant the power to avoid it. Redfield on Rail- 
ways, § 37, note 3, § 51. 



Caruthers, J., delivered the opinion of the Court. 

This is an action of assumpsit for calls on stock 
subscribed by Cunningham in the Edgefield and Ken- 
tucky Railroad Company. 

The main defence is, that at the time the stock was 
subscribed, there was fraud and deception practiced upon 
him by one Enoch P. Council , who was acting as agent 
of the road in obtaining stock, in this : He refused to 
take stock unless one Cartwright, a son-in-law of Con- 
nell, would do so before him; and Connell, without 
authority from Cartwright, entered his name for twenty 
shares under a pretended power from him, but, in fact, 
without authority, and the same was never sanctioned, 
but positively repudiated by Cartwright. The book of 
stock was returned by Connell to, and accepted by the 
company. No notice to the company, or to Connell, 
that the subscription was repudiated, was given ; but 
proof was offered to show, that, as soon as Cunningham 
ascertained that the subscription for Cartwright was 
without authority, he repudiated, and announced that 
he would not pay his. This evidence was rejected by 
the Court, and that was certainly right, because, if the 
power existed at all to renounce and abandon his sub- 
scription, it clearly could only be done by notice to the 
agent, or to the company, in proper time. 

If that defence could be made available at all, which 



28 NASHVILLE : 



Enoch CunDiDgham v. Edgciield and Kentucky Bailroad Company. 



we need not decide in this case, the facts here presented 
are not such as to raise the question. 

But, still, if the subscription was fraudulently ob- 
tained, and any injury resulted to him therefrom, he 
would have a good defence, though his name was ac- 
cepted and entered upon the stock book of the company, 
unless by his failure to notify them in a reasonable time 
after he discovered it, they would sustain an injury by 
its release. If he was deceived and defrauded, it would 
have been his duty to have notified the company, or its 
agent, of it, and his intention not to pay, before they 
incurred liabilities on account of it in the construction 
of the road. 2 Par. on Con., 278. Delay is evidence 
of a waiver. 

It docs not appear that there was any Intentional 
wrong on the part of Connell, but that he had reason- 
able grounds to believe that his son-in-law, Cartwright, 
had made up his mind to take stock against his first 
determination. But, as it turned out, this was not so, 
and his name was entered without and against his con- 
sent, and he refused to ratify the act. Bat Connell 
made it good himself, and there was no injury on the 
score of the money, to the extent of those twenty shares. 
Yet Cunningham was deceived as to that fact, and so 
was Connell; and the latter sustained the injury by 
taking the stock upon himself. Still, it is true, that 
the condition upon which Cunningham subscribed failed. 
But, as a condition, it would not invalidate his subscrip- 
tion, because it was not part of the writing signed by 
him. Hast Tennessee and Virginia Railroad v. Gam- 
mon^ 6 Sneed, 6b7. 

If it were an innocent mistake, on the part of Con- 



DECEMBER TERM, 1858. 29 



Joseph M. Burroughs r. W. W. Groodall ci al. 



nell, upon which he acted, he would be entitled to relief; 
but only in case he were injured by it, and took ad- 
vantage of it in proper time. This he did not do, and 
the misrepresentation has done him no harm. It could 
not be material to his interest, as a stockholder, whether 
the amount was paid by Gartwright or another. 

False representations in general, if not fraudulent, 
and form no part of the contract itself, will not vacate 
it. Chitty on Contracts, 682. But even if innocent, if 
the party acts upon them to his injury, relief will be 
afforded. 2 Parsons, 268. But there can be no relief 
against fraud which is not operative, and in its effects pro- 
duces no injury or loss to the party seeking redress on 
account of it. 1 Meigs* Digest, § 337 ; 2 Parsons on 
Contracts, 268. 

The law and the facts are against the plaintiff in 
error, and he was, properly, subjected to the payment of 
his stock by the verdict and judgment below. 

We affirm it. 



Joseph M. Burrocohs v. W. W. Goodall, et aL 



1. SUMMA.RT Proci£DI>^g. Motion against Sheriff and serurlties. Revi- 
vor by motion. Aet of 1858, ch. SO. Prior to tho act of 1858, the 
remedy by motion did not extend to the })praonal reproscntative of a 
deceased officer, or of his security, and could not be maintained against 
either. By that act, if tho officer, or either of his securities, .shall die 
during the pendency of a suit by motion, against them, it may be 
revived against the personal representative of such officer, or security. 



80 NASHVILLE : 



Joseph M. Burroughs v. W. W. Goodall et aL 



in the same way that suits arc revived against personal representatives 
in other cases.* 

2. Same. Same. Same. Act of I808 does not have a refrospecHve opera' 
Hon* If the Legislature could have given the act of I808 a retro- 
ppcctive operation, it is manifest that it was not done ; and is, there- 
fore, to be construed as applicable, only, to cases arising after-its pas- 
sage. 

o. Same. Sam^. Same. Death of the principal abates the motion as to 
the securities. It is only through their principal, and jointly with 
him, that the securities can be reached by motion. And the abate- 
ment of the motion as to the principal, of necessity, works an abate- 
ment as to the securities. Even imdcr the act of 1858, no step can 
be taken against the securities until the motion is revived against the 
personal representative of the principal. 



FROM JACKSON. 



This cause was heard at the November Term, 1858, 
(iooDALL, J., presiding. The plaintiff appealed. The 
facts are stated by the Court. 

H. Denton and M. M. Brien, for the plaintiff. 

J, P. Murray, for the defendants. 

McKiNNEY, J., delivered the opinion of the Court. 

On the 21st of July, 1856, the plaintiff obtained judg- 
ment, by motion, against Goodall, the Sheriff of Jackson 
county, and his sureties, before a Justice of said county, 
for $135,54, for the failure of his deputy to make re- 
turn of a justice's execution, issued upon a judgment 
in favor of the plaintiff against one Settle. From this 

*The provisions of the act of 1858 are carried into the Code, section 
3697. 



DECEMBER TERM, 1858. 81 



Joseph M. Burroughs v. W. W. GooduU ei al. 



judgment the defendants appealed to the Circuit Court. 
At the November Term of said Court, 1856, the death 
of Goodall, the Sheriff, was suggested and admitted. No 
other step appears to have been taken in the case un- 
til the July Term, 1858, when the defendant moved the 
Court to dismiss the motion. This motion was refused. 
And, thereupon, on motion of the plaintiff, a $cire fa- 
cias was awarded against the administrator of said Good- 
all, to shew cause whj said motion should not be re- 
vived against him. 

The administrator appeared and demurred to the scire 
facias/' and, on argument, the Court sustained the de- 
murrer, and gave judgment that the motion be abated 
as to all the parties — the sureties as well as the prin- 
cipal. 

On the foregoing facts two questions arise. First : 
Did the Court err in holding that the motion could not 
be revived against the personal representative of the 
Sheriff? and, secondly, in holding that the motion stood 
abated as to the sureties. 

We are of opinion that the judgment is right upon 
both points. 1st. It is well settled that, by the law as 
it stood prior to the act of 1858, ch. 89, this remedy 
by motion, did not extend to the personal representa- 
tive of a deceased officer, or of his surety ; and could 
not be maintained against either. Park v. IValker^ 2 
Sneed 503, and cases there referred to. But the law 
upon this subject has been changed by the act of 1858, 
which provides, in substance, that in cases of motions 
against sheriffs, coroners, or constables, and their sure- 
ties, where the officer or either of his securities shall 
die during the pendency of the motion, it may be re* 



32 NASHVILLE : 

/ 




Joseph M. Barrouglia r. W. W. Goodall ct aL 

vived against the personal representative of sucli officer, 
or security, in the same manner that suits are revived 
against personal representatives in other cases. 

This act is supposed by the plaintiff's counsel, to 
be applicable to the present case; and in holding other- 
wise it is insisted that the Circuit Judge erred. It is 
xtftg^thojight proper to discuss the question, whether it 

^r«l,A4^^ttlS(^'9|^^ ^^^^ competent for the Legislature to have 
* giveiv .the^fiaw a retrospective operation, as we feel very 
<clear that i\^e act upon its face evidences no such in- 
tention, -atity^is, therefore, upon a well established gen- 
^ai primrfple, to be construed as applicable, otily, to 
c^piiiarising after its passage. And such, indeed, is the 
true import of the second section of the act. 

2d. We think it equally clear, that the abatement of 
the motion as to the principal, of necessity worked an 
abatement as to the sureties also. We are aware of no 
decision of this Court upon this identical question ; but 
the principle declared in the case of Balew v. Clarke 
4 Hum. 505, by analogy fully maintains our conclu- 
sion. But if there were no authority to be found, in 
reason, it must be so. It is only through their princi- 
pal, and jointly with him, that the securities can be 
reached at all. They cannot be proceeded against sepa- 
rately from him in this summary method. And any 
cause, founded either on matter of law, or fact, which 
precludes the party injured from proceeding, by motion^ 
against the principal, personally, constitutes an insupera- 
ble ban'ier to such proceeding, against his securities. 

It matters not that the motion was properly institu- 
ted against the sherifiF and his securities, in the life- 
time of the former ; his death, pending the motion, ar- 



DECEMBER TERM, 185S. 83 



Ephraim EIrod, GuardiAD, Ac,, v. W. & G. E. Myers. 

rests all further proceedings, and is an end of the case, 
under the law as it stood until the passage of the act 
of 1858. And, even under that act, no step can be 
taken against the securities until the motion shall have 
been revised against the personal representative of the 
principaL 

Judgment affirmed. 




Ephraim Elrod, Guardian, &c. v. W. & C. E. Myers. 



Guardian and Ward. When an infant may bind himself, or guardian, 
or parent, for necessaries. If an infant is under tho care of a parent 
or guardian, who has the means and is willing to furnish him what is 
actually necessary, he can make no contract for any article whatever, 
that will hind himself, his parent, or guarOJan, without tho consent of 
his legal protector and adviser. But an infant is llahlc for necessa- 
ries suitable to his rank and condition, when he has no other means 
of obtaining them except by the pledge of his own |>ersonal estate. 



FROM JACKSON. 



Verdict and judgment for the plaintiff, at the July 
Term, 1857 ; Goodall, J., presiding. The defendant 
appealed. 

James W. McHenry, for the plaintiff in error, cited 

and commented upon^ 2 Kent's Com., side page, 239 ; 

9 John. R. 141; 2 Paige's Oh. R. 419. 

8 



34 NASHVILLE : 



Ephraim Elrod, Guardian, &c., v. W. & G. E. Myers. 

J. P. Murray, for the defendants in error, referred 
to 2 Kent's Com. 192-218; 2 Greenl. on Ev. §§ 365, 
366. 

McKiNKEY, J., delivered the opinion of the Court. 

The plaintiff in error, as guardian of Susan Clarke, 
a minor, was sued before a justice, upon a store account, 
for about $17,00, for goods furnished to his ward, by 
the defendant in error. And, on appeal to the Circuit 
Court, judgment was rendered against said guardian for 
the amount of said account. 

From the proof, it appears that the goods, — which 
were certain articles of dress — were sold and delivered 
to the minor herself, without the knowledge of, or any 
authority from, her guardian. Whether or not the goods 
sold to the minor were necessaries suitable to her con- 
dition, and what was her fortune or condition in life, 
are matters as to which there is no proof in the record. 
The proof shows that she was furnished with some goods 
by her guardian; and there is no evidence that he re- 
fused to provide reasonable necessaries for her. It also 
appears that the minor, without the knowledge or con- 
sent of her guardian, had contracted several other store 
accounts. 

Upon this proof the Judge instructed the jury, that 
the defendant, as guardian, was liable for necessaries 
furnished his ward, provided the amount did not exceed 
the interest of the fund in his hands belonging to the 
ward; and that he would be liable although he had not 
requested or authorized the plaintiff to furnish the goods 
to his ward, if they were necessaries. 



DECEMBER TERM, 1858. 35 



Ephraiin Elrod, Guardian, Ac., v. W. & C. E. Myers. 



This instructioa is entirely erroneous. All the au- 
thorities concur, that, if an infant lives with his parent, 
or guardian, and their care and protection are duly ex- 
ercised, he cannot bind himself even for necessaries. 2 
Kent's Com. 239. 

An infant is liable for necessaries suitable to his 
rank and condition, when he has no other means of ob- 
taining them except by the pledge of his own personal 
credit. 

But if he is under the care of a parent or guardi- 
an, who has the means and is willing to furnish him 
what is actually necessary, the infant can make no 
binding contract for any article whatever, without the 
consent of his legal protector and adviser. 2 Paige's 
Ch. Rep. 419. 

And where it is claimed that the goods furnished 
were necessarieSj the evidence may be rebutted by proof 
that the infant lived under the parental roof, and was 
furnished with such real necessaries of life as, in the 
judgment of his parent, seemed proper. Addison on 
Con. 83. It may also be shown that he was furnished 
in like manner by his guardian, or that a competent 
allowance was made to him for his support ; or that he 
was supplied with necessaries from other sources. 2 
Greenleafs Ev., sec. 366, and authorities referred to in 
note. 

From these principles it is clear that the contract, 
in the present case, was not binding on the infant — 
upon the facts in this record — ^neither did it impose any 
obligation whatever upon the guardian. 

The judgment will be reversed. 



86 NASHVILLE : 



Sarah Chapman v. The State. 



Sabah Chapman v. The State. 

1. Code. When it toent into effect. Act of 1847, th, 89. There is no 
positive enactment as to the time when the Code should go into effect. 
The general rule is, that all statutes are in force from the date 
of their enactment, unless some other time Is prescribed therein ; 
but the act of 1847, ch. 89, enlarged this rule to forty days after the 
passage of any general law. The Code adopts the act of 1847. ch. 89, 
computing, however, the forty days from the adjournment of the 
Legislatu re, sine die. The Legislature that enacted the Code adjourned 
on the 22d day of March, 1868, and the Code went into operation on 
the first day of May, thereafter. 

2. Chimin AL Law. Falae pretence. Act of 1842, ch. 48. Release of 
the penalty. The power to release the penalty imposed by the act of 
1842, for obtaining goods under false pretences, on the recommenda- 
tion of the jury, where the goods do not exceed ten dollars, is vested, 
aUmet in the Circuit Judge. If he decline to do so, the power cannot 
be exercised by tho Supreme Court. 

8 Same. Same. Same. False pretence to be taken in its legal sense. It 
is not every falsehood or pretence that will constitute the offence 
created by the act of 1842. False pretence is to be taken in Its legal, 
and not in its literal sense. The obtaining a quart of whiskey by 
falsely pretending to be sent for it by another is not sufficient to con- 
stitute the offence. 



FROM OVERTON. 



The prisoner was conyicted at the June Term, 1858, 
Garbenhire, J., presiding. Motions in arrest and for 
a new trial having been overraled, an appeal in error 
was taken to the Supreme Court. 

Jones, for the prisoner, argued that there was no 
time fixed for the Code to go into effect, and, therefore, 
it took effect forty days after the adjournment of the 



DECEMBER TERM, 1858. 37 



Sarah Chapman v. The State. 



Legislature. This would be about the first day of May, 
1858. The time of holding the Circuit Court for Overton 
county was changed by the Code : consequently there was 
no law authoriziug the holding of said Court at the time 
the plaintiff in error was tried. This being so, the 
judgment should have been arrested. 

Again, the prisoner was recommended to the mercy 
of the Court. Under the act of 1842, ch. 89, § 8, the 
Court has the power to release the penalty. His honor, 
the Circuit Judge, refused to do so. Under all the 
circumstances of this case, the penalty, certainly, should 
have been released ; and this Court can now do what it 
was the duty of the Court below to have done. 

I further insist that the case made out does not fall 
within the provisions of the act of 1842. If parties are 
to be convicted for every falsehood perpetrated to get 
whiskey, the walls of the penitentiary will have to be 
enlarged. Many cases analogous to this are to be found 
in which it was held the offence was not made out. 8 
Arch. C. P., 468 ; Roscoe's Crim. Ev., 465, et geq. Roscoe 
refers to several cases analogous to the one now before 
the Court. 

Snbed,. Attorney General, for the State. 

Caruthers, J., delivered the opinion of the Court. 

This is an indictment, in the Circuit Court of Over- 
ten, for obtaining one quart of whiskey from Joseph 
Morton by "false and fraudulent pretences." She is 
charged to have falsely "represented and protended that 
she was sent by one James Brown to get the spirits 



38 NASHVILLE : 



Sarah Chapman v. The Stato. 



for him." This is under the act of 1842, ch. 48, and 
was found 23d June, 1858. A conviction was had at 
the same term, and sentenced to three years confinement 
in the penitentiary. The jury recommended the defend- 
ant to the mercy of the Court, but the Court declined 
to ''release the penalty imposed by the act," as he was 
authorized to do on the recommendation of the jury, by 
the third section, where the goods obtained do not ex- 
ceed the value of ten dollars. 

We are now urged to grant the release. We doubt 
our power to do so, as it was probably intended to 
confine this discretionary power to the judge trying the 
case, who would have all the facti before him, and on 
that account be better able to form a correct opinion 
upon the merits of the case. He failed to notice the 
recommendation in any way, and thereby tacitly rejected 
it. We held, at Knoxville, that the power given to the 
Circuit Judge to commute the punishment in the peni- 
tentiary to confinement in the common jail, in cases of 
petit larceny, was given, alone, to the judge below, and 
could not be exercised by this Court. That is analo- 
gous to this case. 

This small case brings up an important question upon 
one of the reasons in arrest, which is, to settle the time 
when the Code went into effect. The question arises in 
this way: The Code changes the times of holding Overton 
Circuit Court from the third Mondays of February, June, 
and October, to the fourth Mondays of January, May, 
and September. So if the act constituting the Code 
was in force before the third Monday in June, it is 
insisted that there was no authority for the proceedings 
and judgment in this case, as the Court was sitting at 



DECEMBER TERM, 1858. 39 



Sarah Chapman v. The State. 



the wrong time, being different from that fixed bj the 
latest act. This question might be avoided by disposing 
of the present case upon other grounds; but we prefer 
to meet it at once, as there seems to be some diversity 
of opinion on the question ; and it is certainly very im- 
portant, for many weighty reasons, that the question 
should be put to rest by judicial determination. 

It would seem a little remarkable that this point had 
not been settled by positive enactment in the Code 
itself. But this can well be accounted for by the im* 
patience and hurry which generally attend an adjourn- 
ment, after a long and tedious session, of any legislative 
body. Although the great body of the Code consists 
of the statutes before enforced, with some changes of 
phraseology, yet there are many new and important pro- 
visions and changes which it would seem reasonable 
should not go into effect until after knowledge of their 
nature on the part of the people, which could only be 
given by publication of the work. It would be proper, 
therefore, if it could be done upon any provision, or 
correct principle, to hold that it only takes effect from 
the time it was published. But can this be done? 

The Code purports to embody all the general acts 
of the State in one act, divided into parUy titles^ chap- 
tersy articles^ and tections. The chapter on the limita- 
tion of actions, by section 47, is not to apply to any 
causes of action accruing before the 6th of October, 1858. 
An argument is made that this has the effect to post- 
pone the whole Code to that day. But in this we are 
not able to concur. If such was the intention, why 
single out that chapter, when it would have been as 
easy and more natural to embrace the whole, expressly. 



40 NASHVILLE : 



Sarah Chapman v. The State. 



This would rather tend to shoir, that as the mind of 
the Legislature was upon the subject at the time when 
the Code should take effect, and they confined the  pro- 
vision to one single subject, that it was not intended to 
extend any further. 

It is a general rule that all statutes take effect from 
the time they are passed, unless some other time is 
prescribed in the act. But, for the purpose of avoiding 
the injustice and hardship, if not absurdity, of holding 
the people bound by laws before they had any oppor- 
tunity of knowing what they were even by their publica- 
tion in the newspapers, or the return of their members, 
a general law was passed in 1847, ch. 39, providing 
that "no general law" should "go into operation, or 
have any binding effect, until after the expiration of 
forty days after its passagey unless otherwise provided 
in the act." 

This is adopted in the Code, section 162, with the 
single alteration that the forty days are to be counted 
from "^Ac adjournment without day" of the Legislature. 
The whole Code is but one general act of the Legis- 
lature, and the only provision in it in relation to the 
point under consideration, with the exception before 
stated, in relation to the limitation chapter, is in con- 
formity to the act of 1847. Then is it possible to avoid 
(the conclusion that it went into operation and effect at 
the expiration of forty days from the adjournment? We 
think not, and so decide. There is no question but that 
was long before the session of the Court at which these 
proceedings occurred, for that was late in June, 1858. 
The Legislature adjourned on the 22d day of March, 



DECEMBER TERM, 1858. 41 



Sarah Chapman v. The State. 



and the Code went into operation on the first day of 
May, 1858. 

Snt still it does not follow that the judgments of 
the Court w^ere nnanthorized and illegal. The Code pro- 
vides in section 41, that 'Mn case of any conflict between 
the acts of this session and this Code, the latter shall 
be controlling.'' The concluding paragraph of the act 
of last session, chapter 98, which fixes the terms of all 
the Courts precisely as does the Code — the one must 
have been copied from the other — excludes the change 
therein made from affecting the first terms to be held 
within "forty days" from the end of the session. Now 
this provision is not in conflict with the Code. The 
latter has no provision on that subject, but only adopts 
and continues the time fixed by the act as a permanent 
regulation. Both may stand without inconsistency. We 
will not say that there are not oth^r grounds upon which 
the judgments of this Court might be maintained, inde- 
pendent of the one stated; but that is sufficient for the 
purpose, and we need not go in search of additional 
arguments. The judgments of Courts and the acts of 
officers, judicial or ministerial, will always be sustained, 
if it can be done upon any correct principle. 

Another ground in arrest is, that the indictment does 
not charge a case of felony under the act of 1842. 

The first section creates this new class of felonies in 
general terms. It consists in feloniously obtaining or 
getting into possession the personal goods or choses in 
action of another " by means of any false or fraudulent 
pretence." The third section defines the words used. 
Among other things, it provides that the phrase, "shall 
include all cases where a person feloniously gets the 



42 NASHVILLE : 



Sarah Chapman v. The State. 



money or goods or choses in action of another into pos- 
session by any (1) false token, (2) or counterfeit letter, 
or (3) by falsely personating another, or (4) by falsely 
pretending to be the owner of such goods," &c., " or 
by any other fahe and fraudulent pretence^ with the 
intention at the time of feloniously stealing them/' The 
four specified cases in the above extract are plain enough 
and of easy application; but under the general clause 
it is difficult to find any settled rule which pervades all 
the cases. The construction placed upon the English 
statutes on that subject, and those of the several States 
of the Union on their respective statutes, (for almost 
every State, with slight variations, has an act of the 
kind,) present such a conflicting variety of decisions that 
it is difficult to extract any settled principle from them. 
In 3 Arch. Crim. Prac, 468, there is a case cited from 
2 East. P. C, 672, very analogous to this, which was 
held not to fall under the statute. So at page 471 of 
the same book, in 43 Eng. Com. Law Rep., 92, where a 
case very much like this was held not to constitute the 
felony. There are other cases cited by the same author 
and other books on the subject, that it would be difficult 

to distinguish from this, where similar aces were held to 
constitute the felony. We are not disposed to open the 

door so wide in the construction of this severe and penal 
act as to convert every case of falsehood and dishonesty 
by which one may get the advantage of another in the 
most insignificant matter into a felony. It surely was not 
intended that barely telling a lie^ for the purpose of get- 
ting twenty-five cents worth of something to eat or drink, 
should constitute a felony punishable by, at least, three 
years confinement in the penitentiary. " False pretence " 



DECEMBER TERM, 1858. 43 



Eli 6. Fleming et al. v. Matt Martin et a/. 



is to be taken in its legal, not literal sense. It is not 
every falsehood or pretence that will constitute the offence. 
But we will not now go into the distinctions. The de- 
fendant must be a very degraded creature, but she seems 
to have been a customer of the prosecutor. The lie was 
not calculated in itself, under the circumstances, to impose 
upon the prosecutor, and there is some reason to doubt 
whether it really did so. 

The judgment will be arrested, upon this ground, and 
the defendant discharged. 



Eli G. Fleming et al. v. Matt Martin el aL 

1. Cba^tcbry. Sale of land, Resclsaion of contract, Berfiatraiion. 
Attachment If a contract for the Bale of a tract of land is entered 
into, and a title bond executed ; and, thereafter, said contract is re- 
scinded b}' the parties, cither in writing or by parol, a specific per- 
formance can not be enforced by the vendee. The creditors of the 
vendee stand upon no higher ground than he occupie?, and can not 
claim a specific performance of such contract, so as to subject the 
lund to the payment of their debts, although the contract of rescission 
is not registered before the levy of their attachments upon the same. 

2. Samb. Same, Same, Same. Fraud. If the rescission of the con- 
tract was prompted by a motive to benefit the vendee, or injure his 
creditors, it would be a fraud upon the creditors ; and would not af- 
fect them. Otherwise, if it was made to save the vendor. The regis- 
tration laws do not apply to such a contract. 

8. Same. Same, Sale of equitable interest. Question reserved. If. in- 
stead of a rescission of the contract of sale, the vendee sells his equi- 
table interest to a third person, and the contract of sale is not registered 
before the land is attached, a diflTerent question would arise. It 
would, then, be a contest between a purchaser and the creditors of the 
vendee, and the question, as to the effect of a non -registration of the 
sale of such equitable interest, as against the creditors, is reserved. 



44 NASHVILLE: 



Eli 6. Fleming et al. v. Matt Hartin et al. 



4. Sams. Lien of vendor for other debts. Question reserved. Would 
the vendor, if the contract is executory, have the right to retain a 
lien upon the land hy virtue of his having the logal title, until all his 
debts against his vendee, both for the land and otherwise, as well as 
liabilities for him, are paid or secured, in preference to attaching 
creditors ? 



FKOM BEDFORD. 



Upon the hearing, at the November Term, 1858, 
Chancellor Ridley, dismissed complainants' bills. They 
appealed. 

E. Cooper, for the complainants. 

W. H. Wisener, for the defendants. 

Caruthers, J., delivered the opinion of the Court. 

The complainants are creditors of Wm. G. Loughry, 
and seek to reach his equitable interest in the tract of 
land described, for the satisfaction of their debts. 

Loughry purchased of Matt Martin on the 81st, De- 
cember, 1851, his large and valuable tract of land in 
Bedford county. The consideration was $47,000, of 
which $20,000 were to be paid upon judgments then ex- 
isting against Martin, in favor of the Bank of Tennes- 
see and others, which were a lien upon the land, and 
the remaining $27,000 in three equal annual payments 
of $9,000 each ; the first to be due on the 1st of 
January, 1854. A bond for title wa3 then executed, in 
a penalty of $100,000. Possession was given immedi- 



DECEMBER TERM, 1858. 46 



Eli G. Fleming et al. v. Matt Martin ei al. 



fttelj, and Loaghry used and ocenpied the place as his 
own, until early in April, 1854, when he became des* 
perate in his circumstances, and absconded and left the 
country. He did not return for two years. 

His creditors, which were numerous and large, not 
being able to find anything else out of which to make 
their debts, filed these attachment bills, to reach the 
equitable interest of their debtor in this land. The first 
bills were filed, and attachments issued, on the 7th of 
April, 1854, and the others in quick succession. They 
allege that Loughry had paid a large amount of the 
consideration, and to that extent has an interest in the 
land; and that after the payment of Martin, whateyer 
may be due him of the jmrchase money y they are enti- 
tled, SIS creditors, to the balance, and to ascertain that, 
they have a right to a decree for the sale of the land, 
and an account. 

Martin resists the prayer of the bills upon two 
grounds : 

1. That the contract of sale was "annulled and re- 
scinded," by an agreement in writing between him and 
Loughry, on the Slst of March, 1854, and that upon a 
settlement of accounts between them on that day, and 
set forth in said writing, the amount which Loughry 
had paid him on the land trade, was to be applied to 
his other 'demands against, and liabilities incurred for, 
said Loughry. So that whatever interest the latter had 
in said land, was released and extinguished. Also, that 
by another written agreement, more formally drawn up, 
but to the same effect, dated on the 6th of April, 
1854, the said Loughry denuded himself, of any and 
all interest he may have had in said land. 



46 NASHVILLE : 



£li G. Fleming et al. v. HaU Martin ei al. 



2. That he has a right to retain the legal title 
with which he has never parted, not onlj for the un- 
paid purchase money, but for all other debts due to 
him by his vendee, or liabilities incurred for him, be- 
fore the attachments; and that the&e debts and liabilities 
will exceed the amount he has received of the consider- 
ation, leaving no interest in Loughry, even if the sale 
had not been rescinded. 

Upon the decision of these questions, the rights of 
the parties must depend: 

The writing of 81st of March, 1854, is severely con- 
tested, and boldly charged to be a forgery. Much proof 
is taken on this point; and among others, Loughry 
himself is examined as a witness. We pass by the 
question of competency, which may be doubtfal. He 
swears most positively, that he never executed or saw 
such a paper, but admits the signature is genuine. He 
says, about that time, and before, he was in the habit 
of giving Martin his name in blank, for the purpose of 
raising money, &;c., but does not remember that par- 
ticular case, but knows he never executed, or even knew 
of the existence of the paper in question. His credit 
is then impeached and sustained, upon his general char^ 
acter. Thirty-odd witnesses are examined, a majority of 
whom would give him credit, but many would not. 
Martin, on the other hand, in his answers, relies upon 
this instrument, and in response to an amended bill for 
a discovery in relation to it, under a charge that it is 
fabricated and forged, positively denies it, and states the 
circumstances under which it was executed with minute 
detail. He states that he became alarmed at Loughry's 
condition; met him at Murfreesboro' by appointment. 



DECEMBER TERM, 1858. 47 



Eli 6. Flemine; ei al. v. Matt Martin ei al. 



where he had gone for the purpose of making a deed 
of trust upon his property to secure his creditors ; that 
they slept in the 8ame room at the hotel, and agreed 
upon the terms of settlement, and he drew it up and 
signed it, and. read it over to Loughry, who said it was 
right, and would sign it next morning; and that on 
the next morning, in the bar-room, he presented it to 
him, and after some explanation he signed it, as he 
thinks, at a desk or table in the public room. This is, 
he says, his bedt recollection, or it may be that Loughry 
did not sign until they got to Shelbyville, which was 
the next morning after it is dated, Ist of April. In 
corroboration of this, James Mullins proves that he was 
with the parties at Murfreesboro' at that time, and saw 
them just before, or after breakfast, in the public room 
at the hotel, standing together near ^^ a long writing 
desk, or something of that sort. Martin had an instru- 
ment of writing, and was reading or showing it to 
Loughry; it was laid down on the desk, and I saw 
Mr. Loughry have a pen in his hand, and my impres- 
sion is, that he signed the instrument of writing." Mr. 
Wisener, a witness, states, that on the return of 
Loughry, after an absence of two years, he came to 
his office to learn something about the state of his 
business, and among other things, he told him what 
Col. Martin said about his article of rescission, and how 
it was executed, as set out in Martin's answer; and he 
understood him to say, that ^' it was all right, and that 
he and Col. Martin would have no difficulty on that 
subject." 

We think that the instrument is established by the 
weight of proof, and that Loughry cannot be credited 



48 NASHVILLE : 



EU G. Fleming ei al, v. Matt Martin et al. 



on that point. There is nothing to overthrow the answer, 
which is responsive, but .the swearing of a single wit- 
ness, and he of a doubtful and slender character. But 
the answer has to sustain it, the very strong circum* 
stances stated by Mullins and by Wisener. 

The Chancellor came . to the same conclusion, but 
held, that not being registered before the bills were 
filed, it could not stand in the way of the attaching 
creditors. But he held that Martin had a right to sat- 
isfaction of all other claims and liabilities against 
Loughry, before he could be compelled to part with the 
legal title. He ordered the necessary accounts on that 
basis, and upon the taking of the same, it appeared 
that there was nothing left for the complainants upon 
the principles adopted, and the bills were dismissed. 
To the account and report producing this result, many 
exceptions were filed on both sides, but the Chancellor, 
in his action upon them, came to the conclusion just 
stated. 

The first sentence in the writing thus established, is 
this: "We, the undersigned, William G. Loughry, and 
Matt Martin, both of the county of Bedford, and State 
of Tennessee, have this day mutually agreed to rescind 
and annul the trade made and entered into by the 
above named parties, on or about the 1st day of Jan- 
uary, 1852, of a tract of land lying in the county of 
Bedford, District No. 1, on the Garrison Fork of Duck 
river.'* 

Loughry then agrees to re -convey the land to Mar- 
tin as soon as the boundaries can be ascertained from 
the title bond, which was not then present. The writ- 
ing then proceeds to adjust the accounts between the 



DECEMBER TERM, 1858. 49 

£li 6. Fleming et al. v. Matt Martin et td. 

parties, by which it is agreed, that what may have 
been paid by Loaghry upon the contract of sale, shall 
stand against the various amounts paid, and to be paid 
for him by Martin, and the use of the place for three 
years, and the overplus, which may be due from Loughry 
upon settlement, is to be secured by his note at one 
day after date. By an account taken under the decree 
of the Chancellor, it turns out that there was a balance 
due to Martin upon the basis of this agreement. It 
seems that the paper executed by Loughry on the 6th 
of April, was intended, more effectually, to carry out the 
stipulations of that of the Slst of March. 

The question arises upon this state of facts, whether, 
on the 7th of April, the time of the filing of the first 
of these bills, there was any interest, legal or equitable, 
in Loughry, which could be attached. Certainly he had 
no interest remaining of which he could avail himself. 
A bill filed by him for a specific performance, it will 
not be contended, could have been maintained. Even a 
parol rescission would have been sufficient to resist him. 
2 Hum., 119 ; 8 Hum., 684. 

But it is contended that his creditors stand upon 
higher ground, and as against them the rescission could 
have no effect until proved and registered. We think 
differently. The registration laws do not apply to such 
a case. There was no fraud here on the part of Mar- 
tin. His object was to extricate himself, by prompt and 
decisive action, from the embarrassing difficulties with 
which he found he was surrounded and the ruin which 
threatened him by his unwarranted confidence in Loughry. 
His action was not prompted by any motive to benefit 

Loughry or to injure his creditors, but to save himself. 

4 



60 NASHVILLE: 



£li Or, Fleming et al, v. Matt Martin et al. 



It was a race of diligence between creditors. As Martin's 
involvment with the common debtor arose out of his con- 
nection with him in this land, it was surely proper to 
make himself secure if he could, by regaining the equita- 
ble title to it. That he has succeeded in doing so, and 
thereby defeated the prospect of complainants to make 
their debts by his loss, is no just ground of complaint on 
their part. They are struggling to cast the loss upon 
him, and each are entitled to any legal advantages they 
can obtain. 

If Loughry, in the absence of fraud, could not ask 
a specific performance against Martin, how can his credi- 
tors ? It is only upon that ground that they can claim 
anything. They ask that the land be sold, and after 

. paying the unpaid purchase money to Martin, the bal- 
ance shall be appropriated to their debts, and the title 

. divested out of him. The answer is, that the contract of 
which you demand the performance, has been annulled 

. by the contracting parties, and your debtor, therefore, 
has no interest under it, and your right must depend 
upon his; you can only claim through him. The case 
would of course be otherwise if the rescission were fraud- 
ulent — made to defeat creditors, for in that case they 
would have a right to regard it as a nullity, and do 
what the party himself could not, because of his com- 
plicity in the fraud. But, otherwise, the creditors would 
occupy no higher ground than the debtor, in this respect. 
We cannot see what the registration law has to do 
with the question. The complainants seek an equity of 
their debtor in the land; it turns out that he has none, 
that the contract in which it originated has been re- 
scinded in a legal mode, and the equity has again been 



DECEMBER TERM, 1858. '51 



£U G. Fleming ei al. v. Matt Martin et al. 



united with the legal estate before tbej attach it. It 
is but an illusion — a thing that once was, but now has 
no existence. 

If Loughry had sold his equitable interest to a third 
person, and the sale had not been registered, a differ- 
ent question would arise. That would raise a contest 
between a purchaser, and creditors of the vendor. But 
this was a rescission, and not a sale ; the release and 
abandonment of a past contract, not the making of a 
new one. 

We are aware of no authority that would invalidate 
this instrument, even as to creditors, for want of registra- 
tion. This is decisive of the case, and renders it un- 
necessary to examine the second ground assumed in 
relation to the right of Martin to retain the legal title 
until all his debts against Loughry, both for the lands 
and otherwise, as well as liabilities for him, are paid or 
secured, in preference to attaching creditors. That ques- 
tion may present some difficulty, and need not be decided 
until it becomes necessary. * 

We come to the conclusion of the Chancellor, though 
by a different process, and upon other grounds, and 
without the necessity of taking any accounts. 

His decree, dismissing the bills, is affirmed. 



*A« to this question, see the case of Williams v. JjOVCy reported in this 
Tolume, p. 80. 



52 NASHVILLE : 



Carter & Pulliam v, B. F. Turner. 



Carter & Pulltam v. B. F. Turner. 



Practice and Pleading. Suit prematurely instituted. Abatement 
Demurrer. The fact that a suit has been prematurely brought is, 
properly, matter for what is termed a plea in abatement to the action 
of the writ, unless the objection is apparent upon the face of the re- 
cord ; and then it is ground of demurrer, or may be taken advantage 
of on the trial. But, if not so apparent, it must be pleaded in abate- 
ment. And if this be not done, the defendant loses the benefit of 
the defence. 



FROM RUTHERFORD. 



This cause was tried before Judge Davidson, at the 
July Term, 1868. Verdict and judgment for the de- 
fendant. Plaintiffs appealed. 

Keeble &; Palmer, for the plaintiff. 

AvBNT, for the defendant. 

McKiNNEY, J., delivered the opinion of the Court. 

This was an action on the case to recover damages 
for the wrongful suing out of an attachment, without 
probable cause. 

The attachment was sued out, not as an original 
process, but under the act of 1843, ch. 29, as auxili- 
ary to a suit at law then pending. 

It seems that Turner had sued the plaintiff, in as- 
sumpsit, to recover the value of certain services, and 



DECEMBER TERM, 1858. 58 

Carter & Pulliam o. B. F. Turner. 

labor performed for him. In aid of this suit, the at- 
tachment was procured to issue. The ground of the 
attachment need not now be noticed, as the case turns 
upon a question altogether aside from the merits of the 
case. 

The facts of the case are, in some respects, very 
imperfectly and obscurely presented in the record. It 
would seem, however, that the main ground of defence 
relied upon on the trial, was, that the present suit, for 
the wrongful issuance of the attachment, was commenced 
before the attachment itself, or the suit to which it was 
auxiliary, had been disposed of. 

The Court held that the suit having been prema- 
turely brought, the plaintiff must fail ; and verdict and 
judgment were rendered for defendant. 

From anything in the record, it does not appear 
that this ground of defence was taken by plea, or that 
the objection was made until the trial. The bill of ex- 
ceptions states — that it was shown from the record, that 
the present suit was commenced on the 13th of July, and 
the attachment was disposed of on the 16th of July, 
1857. And on this proof, made on the trial, the case 
went off. We will not decide whether this defence, if 
made in the proper form and at the proper time, ought 
to have prevailed ; but will restrict our inquiry to the 
simple question, whether it was admissible for the de- 

» 

fendant to avail himself of it, by proving the facts on 
the trial. 

The fact that a suit has been prematurely brought^ 
is properly matter for what is termed a plea in abate- 
ment to the action of the writ, unless the objection is 



54 NASHVILLE : 



Timothy O'SuUivan r. Patrick Larry et al. 



apparent upon the face of the record, and then it is 
ground of demurrer, or may be taken advantage of on 
the trial. But, if not so apparent, it must be pleaded 
in abatement; and if this be not done, the defeTidant 
loses the benefit of the defence. 1 Ghitty on PL 453. 
Upon this ground alone the judgment must be re- 
versed, and the case remanded for a trial on the merits. 



Timothy O'Sullivan v. Patrick Larry et al. 



1. Certiorari AHD SuPKKsiCDEAB. What the petition mu%t show. Code, 
2 3130. By J 8180 of the Code, when the certiorari extends only to 
a part of the judgment, or the cause is brought up by one of several 
parties, a certified copy of the proceedings complained of shall be 
made out by the proper oflScer and filed in lieu of the original papers 
and the suit, as to parties who do not join in the application, shall 
not be affected. And if the whole judgment is not complained of the 
petition must show in what the error consists, and the amount of the 
same. A general statement that the judgment is for a much larger 
amount than the plaintiff is entitled to, is not sufficient. 

2. Same. Petition must show merits, Ahateinent. When a party has 
lost his right of appeal, and is driven to the extraordinary remedy fur- 
nished by the writ of certiorari, he must show merits. A trial in the 
wrong civil district is a matter in abatement, and cannot be taken ad- 
vantage of by certiorari. It does not involve the merits of the case. 

3. Same. Justice of tfie peace. Civil district Code, J J 4114 and 4118. 
If it were conceded that objection to a trial out of the proper district 
could be made available by certiorari, the petition for the writ must 
state such facts as will enable the Court to see that the case was tried 



DECEMBER TERM, 1858. 55 

Timothy O'SuUivan v. Patrick Larry et al, \ 

in the wrong district, as regulated by}{4114a^d4118of the Code. 
A statement tfaut the trial was had without the civil district of, both, 
the plaintiff and defendant, is not sufficient. 



FROM SUMNBR. 



The petition of the defendant below for writs of 
certiorari and supersedeas, was dismissed upon motion at 
the June Term, 1858. Turner, J., presiding. The pe- 
titioner appealed. 

Baxter Smith, for the plaintiff in error. 
Head &; Turner, for the defendants in error. 

Wriqht, J., delivered the opinion of the Court. 

The Circuit Judge did not -err in dismissing the pe- 
tition for writs of certiorari and supersedeas in these 
cases. 

Section 8129 of the Code of Tennessee, provides 
that where the error complained of is in the amount of 
the judgment, the petition shall show the amount of 
the mistake, and the supersedeas shall not issue for 
more than such amount; and the plaintiff in the judg- 
ment shall be entitled to execution for the balance not ' 
complained of, as if no such writ had been obtained. 

And section 3130 provides that when the certiorari 
extends only to a part of the judgment, or it is brought 
up by one or more of several parties only, a certified 
copy of the proceedings complained of shall be made 



56 NASHVILLE: 



Timothy O'SuUiyan v. Patrick Larry et aL 



out by the proper offieer, and filed in lieu of the orig- 
inal papers and proceedings as to parties who do not 
join in the application, shall not be affected. 

Now it is palpable the petitioner did not complain 
of the whole amount of these judgments; jet he failed 
to state wherein the error consisted, or its amount. The 
language of the petition is, that " petitioner will be 
able to show upon a new trial, that the judgments were 
for a much greater amount than the plaintiffs were enti- 
tled to." 

This language implies that a large portion, if not 
the greater part of these judgments is correct. 

The objection that these trials and judgments were 
not had in the proper civil district, if true, at this 
stage of the cause, has nothing in it, because it does 
not involve the merits of the case ; and when the party 
has lost his appeal, and is driven to the extraordinary 
remedy furnished by the writ of certiorari, he must 
show merits. 

But when we examine the petition it does not ap- 
pear from anything stated therein, that the trials and 
judgments were had in the wrong district. The petition- 
er's objection is that he was tried out of his own dis- 
trict and that of the plaintiff. The form of the ac- 
tions were in debt, and by the 4114th section of the 
Code, he was not entitled to be tried in his own dis- 
trict because he disputed the plaintiff's claim. And in 
that case — unless the magistrate was incompetent, or ab- 
sent, or there was no magistrate of the plaintifi's dis- 
trict — the trial should have been in that district. But 
in case of incompetency, absence, or want of a magis- 
trate in the proper district, the trial may be had in 



DECEMBER TERM, 1858. 5? 

Golladay, Cheatham A Co. v. The Bank of the Union. 

any adjoining district. Code, section 4118. Now, if we 
concede that the defendant had a right to call in ques- 
tion the want of a trial in the plaintiff's district — a re- 
quirement evidently for the plaintiff's benefit — yet he 
nowhere in his petition states anything from which it 
may be seen that these cases were tried in the wrong 
district. 

But, as before stated, this is matter in abatement, 
and does not go to the merits. 

Judgment affirmed. 



GoiiLADAY, Cheatham &; Co. v. The Bank of the Lnion. 



1. Bills and Notks. Demand and notice. What auffldent evidence of 
notice. Act of 1820, ch. 25, { 4. Cod^ U 1800 and 1801. A Notary 
Public is a public officer, and when he cortifles that he has done an 
official act, it is presumed that he has performed that duty according 
to law, until the contrary is shown. Hence, if he certify in or on 
his protest, that he notified the drawers and endorsers, it is, prima 

faciCf good ; and it is not necessary that he should state the time when 
the notice was giA^en, the post office to which it was sent, &c. The 
act of 1825, carried into the Code, Sees. 1800 and 1801, does not ex- 
pressly, require it. 

2. Same. Same. Effectein the hands of the drawee. If the drawer of 
a bill has no effects in the hands of the drawee to meet it, or some 
good reason to believe it will be accepted, he is bound to the payee, or 
holder, without demand or notice. It is, however, presumed that 
the drawee has such effects, until the contrary appears ; and this pre- 
sumption is not changed by a waiver, or want of acceptance of the 
bill. 

8. 6am K. Same. Waiver of notice. If the drawer of a bill, with a 



58 NASHVILLE: 



Gk>lladay, Cheatham & Co. v. The Bank of the Union. 

JcTtowledge that he U discharged from its payment for want of notice, 
acknowledge the debt and promise to pay it, he, thereby, waives de- 
mand and notice, and is liable for the same. 



FROM DAVIDSON. 



At the September Term, 1858, Baxter, J., presiding, 
there were verdict and judgment for the plaintiff. The 
defendants appealed. 

Tnos. Washington and A. L. Demoss, for the plain- 
tiffs in error. 

F. B. Fogg and J. H. McDonald, for the defendant 
in error. 

Carutheks, J., delivered the opinion of the Court. 

Tho Bank of the Union recovered a judgment against 
Golladay, Cheatham & Co., as the drawers, in Tennessee, of 
a bill of exchange for $1200, upon Traber & Aubery, of 
Cincinnati, Ohio, in the Circuit Court of Davidson. '* Ac- 
ceptance waived,** was written upon the face of the bill. 

The errors assigned, are upon the charge of the Court. 

The defence was upon the ground of failure of notice 
of the demand and refusal to pay. The official protest of 
the notary is in evidence, which shows that the protest 
was on the proper day, 23d of October, 1867 ; the bill 
having been drawn on the 22d of July preceding, at ninety 
days. The only proof of notice is this sentence in the 
body of the protest: ^^I then notified the drawers and 
endorsers." The act of 1820, ch. 25, sec. 4, is, that 



DECEMBER TERM, 1858. 59 

GoUaday, Clieatham & Co. r. The Bank of the Union. 

when **the notary shall have certified either tn, or on 
his protest, that he has given notice of demand of payment, 
and refusal, or the dishonor of such bill," &c., '' to the 
endorsers, makers, or others concerned, such protest shall 
le prima facie evidence of the fact of notice." 

The Code, in sections 1800 and 1801, continues, in sub* 
stance, the same provision. This was done to save the 
parties from the expense of taking depositions, and the 
loss of rights by the accident of death. 

The fact is to be stated by the notary, either in or 
on his protest. But it is said that he must state the 
time when the notice was given, the post oflSce to which 
it was sent, and all the particulars necessary to make 
out a good legal notice, under the law merchant. The 
act does not expressly require this. The notary is a 
public officer and when he certifies that ho has done an 
official act it must be presumed that he has done it 
correctly, unless some statute or rule of law prescribes 
a particular mode, until the contrary appears. It is only 
made prima facie evidence. It is no hardship on a de- 
fendant who is relying upon strict law and, generally, 
without merit to get clear of a debt, to require him to 
rebut this presumption. It would be easy to prove the 
facts by the notary if he had not done enough to fix 
the liability. We are not prepared to agree with his 
honor, that this proof unrebutted, was not sufficient on 
the question of notice. We think it was prima facie^ 
under the statute, and cast the burthen of proving the 
contrary upon the defendants. But the plaintiif recovered 
upon other grounds, with this error against him. 

The defendants complain of two positions in the 
charge against them : 



60 NASHVILLE : 



Golladay, Cheatham & Go. v. The Bank of the Union. 

1. The Court stated to the jury, "that if the de- 
fendants had no effects in the hands of the drawee, with 
which to meet the bill, they would not be entitled to 
notice of the dishonor; and that in the absence of an 
acceptance by the drawee, or a waiver of an acceptance 
upon the bill, the law would not raise a presumption of 
effects in the hands of the drawee, and the burthen of 
proof of effects would lie upon the defendants." 

2. "That the letter marked exhibit * C/ although it 
specified no particular debt as being due from the de- 
fendants to the plaintiff, might, in the absence of proof 
of the existence of any other debt, be presumed to 
apply to this debt ; and that if they believed it to apply 
to this debt, it would be a waiver of notice, and a 
promise to pay the debt, notwithstanding there had been 
no notice. And that the said letter was admissible un- 
der the present state of the pleadings, to prove a waiver 
of notice, and subsequent promise to pay, where the 
declaration contained but one count, with an averment 
that there had been due and legal notice, and without 
any excuse for the want of notice, or any count founded 
on a subsequent promise." 

The letter marked exhibit " C," was written by Archer 
Cheatham, one of the firm, and is as follows: 

At Home, December 30th, 1867. 
"Dan'l F. Cartbr, Esq., 

" Dear Sir : — Golladay, Cheatham & Co., have stopped 
their furnace, and will wind up their business just as 
rapidly as possible. We have about 1000 tons pig iron, 
with negroes and mules, all which we are going to sell 
as soon as possible, in order to pay off all the indebt- 
edness of said firm. We are owing money, and among 



DECEMBER TEBM, 1858. 61 

GoUaday, Cheatham A Go. 9. The Bank of the Union. 

the rest, are indebted to your Bank. It has been our 
wkh to pay off all our debts promptly, but no one, six 
months ago, looked for the times we have had for the 
past four months. Like many others, we have found it 
impossible to pay our debts at maturity. But we have 
stopped our furnace, and will sell everything belonging 
to the firm, and go ahead and pay what we owe, with- 
out the mortification of suit. If you think, however, 
upon consultation with those engaged with you, that a 
suit is the safest and quickest way to collect your 
debt, I have not one word of complaint to utter. We 
are abundantly able to pay all we owe, and will devote 
ourselves to this purpose until we get through." 

Dan'l Carter, to whom this letter was addressed, was 
proved to be the President of the Bank of the Union, 
and it was also proved, that this letter was in the hand 
writing of the said Archer Cheatham, of the firm of 
defendants. There Is but little other proof in the case, 
except as to the residences of the defendants, their post 
offices, and place of doing business, and that they were 
in the habit of doing business by consigning their iron 
to the drawees of this bill. But whether they had any 
effects in their hands to meet this bill, or had given 
any assurances that it would be met, does not appear. 
There is no proof that we can notice upon either side 
on that point. 

In reference to this state of facts, are the legal posi- 
tions assumed in the charge erroneous? 

1. There can be no doubt but that the drawer of a 
bill is bound to the payor or holder, without demand or 
notice, where he has no effects in the hands of the 
drawee to meet it, or some good reason to believe it 



62 NASHVILLE: 



GoUaday, Cheatham & Co. v. The Bank of the Union. 

■will be accepted. Story on Prom., notes, sees. 311, 268 ; 
Story on Bills, 311, 369. But this is an exception to 
the general rule; Chitty on Bills, 436, and note 2. But 
it is always presumed that the drawee has such 
effects, until the contrary appears. Chitty on Bills, 327, 
436. The holder must prove this to excuse notice, 
note 2; and 2, Marsh. 152; Byles on Bills, 234, note 1. 
So the only question upon this part of the charge, is, 
whether the waiver of acceptance upon the bill, or the 
absence of acceptance, changes the presumption of law 
in favor of effects being in the hands of the drawee, 
and throws the burthen of proving that fact upon the 
drawer, before he can defend himself upon the ground 
of want of notice of dishonor at maturity, upon the 
demand of payment. 

There are some exceptions to the rule that want of 
effects dispenses with notice; Chit, on Bills, 329, 436, 
and note; but they need not be referred to, as the 
facts of this case did not require that ihey should bo 
brought to the attention of the jury. Upon this pre- 
cise question we have been referred to no authority, and 
are unable to find any. The position of the charge is 
that where there is no acceptance, and this may be 
for want of presentation, or refusal to accept upon 
presentation, the presumption of law that the drawee has 
effects of the drawer in his hands is overthrown. In 
other words, there is no such presumption unless the 
bill is accepted, or that it does not arise until actual 
acceptance. It goes further, and holds that the pre- 
sumption is against effects to meet the bill, and the 
drawer must show he had them there before he can in- 
sist upon his right to notice of demand and refusal to 



DECEMBER TERM, 1858. 68 

Golladay, Cheatham & Co. v. The Bank of the Union. 

pay. This was certainly conclusive of the case upon 
that point, as it was not pretended that the bill had 
been presented for acceptance, or that it was intended 
by the parties that this should be done. The duty of 
doing this was waived on the face of the paper. And 
thii last fact, also, the Judge charges, would have the 
same effect to change the burthen of proof. 

In the absence of authority, we are not prepared to 
adopt this principle, which seems to us to be an inno- 
vation upon the established practice. We are not able 
to see how the fact of want of acceptance, or waiver 
of acceptance, could change the legal presumption in re- 
lation to the existence of effects to meet the bill in the 
hands of the drawee. We can perceive no good reason 
why it should have the effect to change the burthen of 
proof on that subject. The law does not require the 
presentation of a bill at all before maturity in order to 
hold the drawer or endorsers liable. The holder may do 
this, or not, at his option, Lud he loses nothing by the 
failure, but the obligation of the drawee, in case be 
would accept. Can the waiver of acceptance have any 
other effect? The drawee in this does not waive the 
presentation for payment, and if not, it would seem 
clear that his right to notice of refusal to pay, would 
remain unaffected, and that any excuse for the failure 
to give him notice of that, wculd have to be made out 
by the holder, by proving, against the existing presump- 
tion of effects, that there was no provision made to 
meet the bill. The charge on this point introduces, as 
it seems to us, a new rule and distinction in this branch 
of the law, which is already sufficiently complicated. 

This practice of waiving acceptance is, perhaps, a 



64 NASHVILLE : 



GoUaday, Cheatham & Co. v. The Bank of the Union. 

modern invention to avoid the charges generally made by 
business men, of a certain per cent, for the act of accept- 
ing. It is difficult to see what legal effect it would have 
upon the rights of the parties to a bill, or how it can in 
any way change the law merchant on the questions of 
notice, or the established presumptions of law, or bur- 
then of proving matters to exonerate holders from the 
performance of acts required to fix drawers with lia-. 
bility. So, we think, there is error in this point of the 
charge. 

2d. On the second point, we think his Honor was 
right throughout, with the exception of the important 
qualification, that an acknowledgment of the debt, and 
promise to pay it, in order to amount to a waiver of 
demand or notice, must be made with a knowledge of 
his discharge at the time. Ad. on Con., 998 ; 3 Kent 
113. Our own adjudication in the case of Spurlock v. 
The Union Banhy 4 Hum., 836, makes the full knowl- 
edge of his discharge indispensable to the binding effect 
of such a subsequent provision. As to the identity of 
the debt referred to in the letter, and the admissibility 
of the evidence under the count averring demand and 
notice, the charge was right upon the authorities. But 
this position as to a promise to pay, amounting to a waiv- 
er of notice, is erroneous without the qualification that 
they knew at the time that they were discharged for want 
of notice. 

It may be that the same verdict would have been 
proper, notwithstanding these errors of the grounds of 
waiver of the want of notice, if the Court had let in 
the protest as proof of notice; and, therefore, a new 
trial should not be given, as the merits have been 



DECEMBER TERM, 1858. 65 

LoaisYille and Nashville B. R. Co. v. James F. Faulkner. 

reached. Yet we cannot tell bnt the defendants were pre- 
pared to disprove the prima fade evidence afforded by 
the statement of notice in the protest, if it had been 
admitted against them. 

The result is that the judgment must be reversed. 



Louisville and Nashvillb B. R. Co. v. James F. 

Faulkner. 

Railroad Gokpaky. Liability to tenant for trespciss. If a railroad com- 
pany, in violation of a contract with the landlord, enter upon land 
held by a tenunt, and commit a trespass upon the tenant's possession, 
by destroying his vegetables, &c., said company is liable, in an action 
on the case, to the tenant for the damages sustained by him. Dther- 
wise, if there is no contract with the company, by which the tenant 
is protected in his possession of the premises. 



FROM DAVIDSON. 



This cause was heard at the January Term, 1858, 
Baxter, J., presiding. Verdict and judgment for the 
plaintiff. The defendant appealed. 

A. L. DsMOSS, for the plaintiff in error. 

J. C, Thompson, for the defendant in error. 

Caeuthers, J., delivered the opinion of the Oourt. 

Faulkner sued the plaintiff in error, in tresspass on 

the case, and recovered $200 damages. The injury 

charged is for entering upon the grounds of which he 

was renter for the year, for the construction of the 

road, and destroying his vegetables, houses, fences, &c. 

5 



66 NASHVILLE : 



LouiBville and Nashyille B. R. Go. v. James F. Faulkner. 

Faulkner was the tenant of General Anderson, and 
had rented the land for the whols of the year 1858. 
During that year Anderson sold to the corporation, and 
executed his bond for title, which was accepted. In 
that it is expressly stipulated that Faulkner is to retain 
the possession until the 1st of January, 1854. But he 
was ousted by the company in October before, and for- 
cible possession taken of the premises, and his property 
destroyed as before stated, in the construction of the 
road. Now, can he recover in this or any other mode 
of proceeding for this supposed injury? 

The owner of the freehold can only proceed under 
the charter, and not by any other mode. But a termer 
is not embraced by the charter, and perhaps has no 
redress against a corporation of this description, for any 
injury he may sustain by the rightful entry upon his 
possessions, and necessary occupation of the same for 
the purposes of the charter. 

The right of the State to appropriate private pro- 
perty to public use, is communicated to these corpora- 
tions, and they may, in its rightful exercise, enter upon 
the lands of others in the construction of their roads, 
lawfully, and without liability as trespassers. So it could 
have entered upon Faulkner with impunity, unless by 
contract that right was lost. It was certainly competent 
for this artificial person to bind itself, by contract, as 
well as any other person. Its acknowledged right to 
enter upon this land, could be waived or postponed by 
contract. And in the present case this was done. The 
corporation bought of Anderson, and as a stipulation in 
that written contract, Faulkner was to retain the pos- 



DECEMBER TERM, 1858. 67 

Loauville and Nashville B. B. Co. v. James F. Faulkner. 

session unmolested for a fixed period. This was a post- 
ponement of an admitted right by contract. Surely both 
parties were bound to observe it. Though Faulkner was 
not a party to it, yet his landlord provided for his pro- 
tection as a term in his sale. Here, then, is a case of 
entering upon another's possessions without authority, and 
against an express contract, and great damage is done. 
Can there be any doubt about the liability in such a 
case ? It is not an injury embraced by the charter ; 
the entry was in violation of a contract, and therefore, 
illegal; damage has resulted, and there is no other 
remedy given. 

It was no defence to show that the title was out of 
Anderson, and in Maxey, or any one else. It was 
enough to show that Anderson had the possession, right- 
{Uly, by his tenant, and that the defendant acknowledged 
his right and contracted with him for it making the 
reservation stated, in favor of the plaintiff. 

There is no error, and the judgment is affirmed. 



A. D. Qoss V. Moses Singlbton et ah 



1. Trust awd Teustke. Gift, Acceptance, Benefit, Preeumption of. 
In general, any gift by deed, will, or otherwise, is supposed prima 
fade^ unless the contrary appears, to be beneficial to the donee. Con- 
sequently the law presumes, until there is proof to the contrary, that 
ey^ry estate is accepted by the person to whom it is expressed to be 
given. 



68 NASHVILLE : 



A. D. €k>88 p. Moses Singleton et al. 



2. Sams. Same. Not perfect until acceptance. The gift is not perfect 
until ratified by the assent of the donee ; and a disclaimer of the trast 
operates as evidence that such assent was never given. 

8. Same. Same, Acceptance discretionary. The law does not force the 
donee to accept the gift of an estate, whether made in trust, or other- 
wise, and therefore it is competent for the person appointed trustee to 
refuse both the estate and the office attached to it, provided he has 
done no act to deprive himself of that right. 

4. Same. Same. Disclaimer. How made. There is some conflict of 
authority as to whether a parol disclaimer is sufficient. But it is well 
settled that the renunciation may be by deed, by matter of record, or 
any written instrument, or by an answer in Chancery.* 

5. Same. Same. Same. Relates hack to the gift. A disclaimer, or re- 
fusal to accept the trust will relate back, and be held to have been 
made at the time of the gift, if no act has been done to preclude the 
party. 

6. Same. Same. Same. Effect of. Devise in trust The legal effect 
of a proper refusal or disclaimer of the trust is, that all parties are 
placed precisely in the same situation relatively to the trust property, as 
if the disclaiming party had not been named in the trust instrument, 
whether it be a deed or will. Hence, if all the trustees disclaim a 
devise in trust, the legal estate iK(ill vest in the heir of the devisor.f 

7. Same. Trust does not necessajnly pass with the property. A trust is 
the mere creature of equity, and does not necessarily inhere in the 
property so as to be inseparable therefrom, but may remain :n the 
trustee or elsewhere, wholly unaffected by an unauthorized sale of the 
property, the subject of the trust. 

8. Same. Effect of the appointment of a tiiistee. If, by reason of the 
disclaimer of the trustees, the property descends to the heir-at-law, 



* The acceptance of a trust may be by acts and declarations ; and, in the 
absence of proof to the contrary, it will be presumed. And it would 
seem that if the conduct and expressions of the trustee amount to an une- 
quivocal refusal to accept the trust, it would be sufficient. Thompson v. 
'Tickell, 8 B. & Al., 39; Bingham v. Clanmorris, 2 Moll., 268; Shep. 
Touch., 452; Stacy v. Elph., 1 M..& K., 195; 16 Conn., 291; 4 Leigh, 
152. 

f What would be the effect of a disclaimer by the trustee, if the cestui 
que trust and heir-at-law were not one and the same person ? Would the 
title then be vested in the heir-at-law ? and, if so, would it not be coupled 
with the trusts, in favor of the beneficiary ? Would not the heir be, by 
operation of law, the trustee ? Field v. Arrowstnith, 8 Hum., 442 ; Hawly 
V. James, 6 Paige C. R., 318 ; 8 Paige C. R., 295 ; Lee v. Randolph, 2 Hen. 
& M., 12 ; Dawson v. Dawson^ Rice, ch. 248 ; 2 Story's £q., 1058 ; Saun- 
dert v. Harris, 1 Head, 206. 



DECEMBER TERM, 1858. 69 



i 



A. D. Goss o. Moees Singleton et aL 



who is also the cestui que trusU the legal estate is cast upon the eetitui 
que trust, who applies to a Court of competent jurisdiction, and has a 
trustee appointed, in whom the legal estate is vested, coupled with the 
trusts, the legal estate is hy necessary implication divested out of the 
cestui que trust. 

9. Same. Same. Statute of limitations. Effect of. If, from the time 

the legal title to real estate, the subject of the trust, is thus vested in 

I the trustee, there is an adverse holding of the same for a period of 

f seven years, the party's title becomes indefeasible by the act of 1819, 

k as against the trustee, and equally so as against the cestui que trust, 

I 10. Sale ov Bkal Estate. Vendor and vendee. When vendee bound to 

accept title. In the absence of fraud, the purchaser of real estate is 
bound to accept a title which is perfect at the time it is to be made, 
although it may have been defective at the time of the sale. 

11. Same. Same. Same. The purchaser of real estate is compelled to 
accept the title if it has become ** indefeasible'' by operation of the 
first section of the act of 1819. 

12. Chancery. Decree. Effect of upon the rights of persons not parties. 
Although a decree is not, in form, binding upon persons who are not 
parties, yet it is in effect, if the determination of the question present- 
ed by the record necessarily involves the determination of their rights 
and the validity of their title. 



FROM DAVIDSON. 



This cause was heard before Chancellor Frierson, at 
the November Term, 1858, Decree for the complainant. 
The defendant, Singleton, appealed. There is a clear and 
full statement of the facts in the opinion of the Court. 

E. H. EwiNG and John Reid, for the complainant. 

1. It was insisted in the Court below that Caroline 
Hagan was not a party to the bill filed by Henry Hagan 
under the act of 1837-8. That under that act the ad- 
ministrator could not file the bill in his own name and 
in behalf of the heirs. That Caroline Hagen should 



70 NASHVILLE : 



A. D. Gobs v, Moses Siogleton et oL 



have been made a defendant to the said bill, and per- 
sonally served with process. A.nd this not being done, 
the sale to Goss was void. 

It is admitted by us that this principle was decided 
by this Court in the case of Frazier and TuUoaSj JEx'rSy 
V. Pankey et aLy 1 Swan Rep., 75. That decision 
seems to have been made against the words, if not the 
spirit of the act. If the Court shall be disposed to 
reconsider this point, they will find, by examining the 
seventh section of the act of 1888, that the act de- 
clared, if the bill was filed by a creditor, it should be 
in his own behalf and all other creditors; that if filed 
by an executor or administrator, ^^ it may he on his own 
behalf, as well as the widow, heirs, and legatees or dis- 
tributees of the estate, against such of the creditors as 
were named therein and sought to be enjoined, and all 
others interested and not named as complainants.*' We 
have understood that the lawyer who filed the bill in 
the case of Hagen v. The Creditors cf Sitler, drew the 
act of 1838, and supposed himself to be complying with 
its provisions. 

The case now before the Court seems to be a much 
stronger case than that reported in 1 Swan, and herein- 
before cited, inasmuch as Caroline Hagan subsequently 
filed a bill, and brought before the Court in a proper 
way all the parties interested, in which she referred to 
the proceedings of the suit in the said suit of Henry 
ffagan, Adm*r, v. The Creditors of Sitler, and ratified as 
far as she could all the proceedings of the Court. In 
fact her suit was the same in substance and design, and 
was but a continuation of the suit by Henry Hagan. 

2. But be this as it may, we do not rsst this case 



DECEMBER TERM, 1858. 71 

A. D Oou V, Hoses Singleton et al, 

upon thifl point. We insist that Ooss acquired a good 
title to this lot bj the statute of limilationa. 

In the case of Williams y. Otey, 8 Hum. Rep., 563, 
this Court decided that '* whenever a trustee having the 
legal title neglects to sue until he is barred by the statute 
of limitations, the cettui que trust is likewise barred, 
though an infant under twenty-one years of age." 

In the case of Susan Wooldridge et aL r. The Plan'- 
ters* Bank et a/., 1 Sueed's Rep., 297, this principle is 
reiterated, and in a case, the facts of which bear a 
marked resemblance to the one now before the Court. 

Yerger conveyed the lot in Pulaski to Walker in 
trust, to pay certain debts; and after their discharge, to 
hold the property, and apply the annual rents to the 
support of Susan, wife of John P. Wooldridge, and to 
the education and maintenance of her three children, 
until they should arrive at age or married, when each 
was to have one-third. Walker, the first trustee, re- 
signed, and White was appointed trustee "in his room 
and stead." This lot was levied upon and wrongfully 
sold to satisfy an execution in favor of the bank. It 
was subsequently sold by the bank, and the united pos- 
session of those claiming under the bank was more than 
seven years. In this case it was decided by this Court 
that the statute of limitations gave a good title to the 
lot to the last purchaser, against Mrs. Wooldridge and 
her children. The trustee could sue, and was bound to 
sue or be barred. 

In the case now before the Court, Edwin 11. Ewing, 
Esq., and Dr. Jennings had the legal title to this lot 
from Isaac Sitler's death, in 1837, down to November, 
1850. They could have sued John D. Goss, who was 



72 NASHVILLE : 



A. D. Go80 V, Moses Singleton et at. 



in the actual possession from 1841, and claiming adversely 
all the time. But if it be objected that they only had 
the bare legal title and never consented to act, and that 
therefore the statute would not run, then we say, ad- 
mitting this to be so for the sake of the argument, 
Isaac Litten was appointed trustee by the ChaLcery 
Court ''in their room and stead,'' and accepted the 
trust. He was appointed at the November Term, 1850 — 
more than seven years — and the statute certainly run 
against him; and barring his title, barred that of the 
cestui que tru9t. 

It is believed the cases of Smith v. Thompson^ 2 
Swan's Rep., 886, and Aikin v. Smithy 1 Sneed's Rep., 
304, do not apply. The statute of limitations could not 
be pleaded successfully in those cases, because, upon the 
termination ot the life estate, the legal title vested in 
the infants. The trustee was not clothed with the legal 
title for their use. The trustee was clothed with the 
legal title only for the life estate. Therefore both 
the legal and equitable title in the remainder being 
vested in the infants, the statute of limitations did not 
run against them. But in the case now before the 
Court, it is believed that . the legal title in the remainder 
was in the trustees, and remained in them until the 
youngest child arrived at age. Between the time of the 
death of the mother, and when the youngest child arrived 
at age, the trustees were to collect the rents, and apply 
them to the support and education of the children. 



John Trimble and T. D. Moselt, for the defendants. 



DECEMBER TERM, 1858. 78 

A. D. Go«8 V. Moses Singleton et al, 

McKiNNET, J. delivered the opinion of the Court. 

The bill seeks to subject a lot in Nashville, sold and 
conveyed bj the complainant to defendant, Moses Single- 
ton, on the 18th of August, 1852, to the satisfaction of 
the unpaid purchase money. This relief is attempted to 
be resisted on the ground of want of title in the com- 
plainant. The facts are briefly as follows: 

Isaac Si tier, who died in the year 1837, devised 
said lot, together with other real estate, to E. H. Ewing 
and Thos. R. Jennings, in trust for his daughter Caro- 
line Sitler, then an infant, to hold for her sole and 
separate use and benefit, and, in case of her marriage, 
free from the control of her husband, and of all liability 
for his debts or contracts. And in the event of the 
death of said Caroline, leaving issue living at the time 
of her decease, or children of such issue, in further 
trust, to hold said property for their use, until the 
youngest child of said Caroline should arrive at the age 
of twenty-one; and then to convey to her children, or 
the issue of such children, in such proportions as the 
law would give in case of intestacy. There are other 
limitations over, in certain events, and other trusts de- 
clared, which need not be noticed for our present pur- 
pose. Said Ewing and Jennings were likewise nominated 
executors of the will, but they declined to qualify; and 
at the term at which the will was offered for probate, 
they appeared in Court, and formally renounced the 
executorship of record. And thereupon Henry Hagan 
was appointed administrator, with the will annexed, of 
said estate. 

In April, 1888, the administrator filed a bill in 



74 NASfiVILLE : 



A. D. Goss V. Moses Singleton et at. 



Chancery, setting forth that the personal estate of the 
testator was insolvent, and had been so reported to the 
County Court, and praying a sale of so much of the 
real estate as might be required to pay the debts, and 
to have the estate administered pursuant to the statute 
applicable to insolvent estates. The bill set forth the 
provisions of the will, and alleged that Ewing and Jen- 
nings refused to accept tho trust, and asked that a 
trustee be appointed by the Court in their sle&d. To 
this bill certain of the creditors were made parties by 
name. The nominated trustees, Ewing and Jennings, 
were likewise made parties. But the infant beneficiary, 
Caroline Sitler, was not made a party. 

Ewing and Jennings answered the bill, and therein 
entirely renounced the acceptance of the trusts declared 
in favor of the testator's daughter; but no trustee was 
appointed in their place. 

In October, 1838, a decree was made directing the 
sale of a portion of the real estate for the satisfaction 
of the debts reported due by the master; under which, 
the lot in controversy in this cause was sold by the 
master on the 18th of July, 1839. But the purchaser 
being unable to pay the purchase money when due, 
transferred the benefit of his purchase to the complainant, 
Goss. This was reported by the master, and approved 
by the Chancellor, and an order was made directing the 
master to convey said lot to the complainant; in pursu- 
ance of which, a deed of conveyance was executed to 
him by the master on the 28th of January, 1841. And 
under this conveyance the complainant held possession 
of the lot adversely to all persons until his conveyance 



DECEMBER TERM, 1858. 75 



A. D. GKms v. Moees Singleton et oL 



to tlie defendant, in 1852 — ^since when the possession has 
been continued in the latter in like manner. 

Prior to the year 1849, the testator's daughter, Caro- 
line, intermarried with Gilbert Hagan, and in December 
of that year (1849) she brought a bill, by her next 
friend, to which the administrator, her husband, and 
the issue of the marriage with him, as well as certain 
creditors and legatees, were made parties; the object of 
which was to have a full and final a<1jnstment of her 
rights under the will, and to have the trusts declared 
therein executed. 

In our view of the case, however, it becomes un- 
necessary to notice the purposes of that bill, or the 
proceedings that were had in the cause, further than to 
state, that, in her bill, she neither affirmatively sanctions 
nor impeaches the previous administration of the estate 
in any respect, although all the proceedings are circum- 
stantially detailed; and, amongst other things, the renun- 
ciation of the trust by Ewing and Jennings, is stated, 
and the Court is called on to appoint a trustee in their 
stead, to carry out the trusts of the will. And in 
accordance with this prayer of the bill, by an order 
made on the 19th of November, 1850, Isaac Litton was 
appointed trustee, and invested with all the powers and 
duties conferred by the will upon the trustees therein 
nominated. 

The present bill was filed on the first of May, 
1855. Gilbert Ilagan and his wife, (formerly Caroline 
Sitler,) and the children of the marriage — the cestuis que 
trust under the will — are not made parties. 

Upon the foregoing facts, the question to be deter- 
mined is, whether the defendant is now invested with a 



76 NASHVILLE : 



•'• V 9 



A. J> Goasv, Moeee^ Singieion et oL 



valid and indefeasible .tille to tha lot in qneatiaii^; a$. 
against Mrs. Hagan and . her children? . For, .^h^ngii 
the title may have been defective at tiie time of ^ii^ . 
the bill, yet, in the absence o£ fraud on the paTt'HQf .. 
the vendor in making the sale, if the title. be fu|]y>p»^>...-^ 
fected at the time of the final decree, the .parjjhf^s^'--^/] 
irill be compelled to 'accept ..its \ :: .1 ^S'^'fj-;, 

For the complainant it is 'insisted, that^ admittit^^itth^j;!^^ 
sale to have been void, .lh« title . of the defefldant 
now .absolutely perfect, and .beyond the reach. oC- li 
peachment, by operation of the statute' of limiliatxoi 
upon the established principle that the legal estiKte .li^i 
vested in a trustee^ whose right of acliou; isc fon 
barred, the ceituis que* trusty though under disabifi^,'.at!^ 
likewise barred. . -^ .n/ ' - -r -t*: 

To this, it is ingeniously . replied by * the ' defendaat'ji^ - -"' 
counsel, Ihat. the conveyance iof the legal estate in.llQ 
lot, to the complainant, (after the discfaumc^r of the. tmsl 
by Ewing &, Jennings,) under the decree of the .cofuri^ 
carried with it/ not merely the legal .title, but the truH 
likewise, so as, by implication, to constitute him ai.tru$!« 
tee; and that standing in this relation, he cannot de-f 
nude himself o£ the trust, or set up an adverse claim* 

This reasoning is not sound. The trust did not, nor 
could it, pass to the complainant with his purchase of 
the lot. The trust is the mere creature of equity, and 

does not necessarily inhere in the property so as to be 
inseperable therefrom, as the argument assumes, but may 
remain in the trustee, or elsewhere, wholly unaffected by 
an unauthorized sale of the property, the subject thereof. 
And this leads to the consideration of matters con- 
nected with the creation of the trust, and the conse* 



1 



DECEMBER TERM, 1858. 



77 



smu 



A. D. Goss -o. MosM'Siagletim st oL 



^<^ - 



.« - 



^^B^iUelr. of' its* reimneiation hy tihe perfions nominated 

«ft. Ifcitstees. It Beema, in general, that every gift, by 

i*^ ot Tfili, or otherwise, is supposed prima faeiej 

^the contrary, appears, to be beneiEcial to the do- \ 
>]pQftseqiiehtly the law presumes, until there is proof 
poatnry, that^ every estatf» is accepted by the 
to whom it is expressed to be given. Hill on 
kf (Bd. of 1854,) 304, top. But the law does 
^^be- aay one to accept, the gift of an estate, 
zsade in- trust, onr otherwise; and, therefore, it 
•tent foiv the person appointed trustee to refuse 
' Ihec' estate. -andi* the office attached to it, provided- 
done* no act to • deprive himselt of that right. 
*SIA' The gift is not perfect until ratified by the- 
nt of- ' the donee ; and a disclaimer of the trusts 
fit as evidence that such .assent was never, given. 
jjd« -31^. ^ There .is some diflference of opinion as< to what 
^fUi }» a sufficient dbclaimer. There are authorities 
>Wbidh> seem to maintain that a parol disclaimer of a 
:gift;, »- either by deed or will, of a fieejbold estate, is 
ABofBeienU But, however this may be, it is • well settled, 
that the renunciation may be by deed, by matter of 
vecord, or any written instrument^ or by an answer in 
Chancery. Id. 81d, 317. And such discligtimer or refu- 
sal to accept the trust, whenever made, will relate back, 
and will be held to have been made at the time of the 
gift, if no act has been done to preclude the party. 
Id. 818. 

The legal effect of a proper refusal or disclaimer of 
the trust is, 'Hhat all parties are placed precisely in 
the same situation relatively to the trust property, as 
if the disclaiming party had not been named in the 



T8 NASHVILLE : 



A. D. Goss V. Moses Singleton et al. 



trust instrument, whether it be a deed, or will." Id. 
318. Hence, in such case, if a sole trustee, or all the 
trustees, disclaim a devise in trust, the legal estate will 
vest in the heir of the defeisor. Id. 

From these principles, it follows that the legal estate 
never vested in Ewing & Jennings: they having proper- 
ly renounced both the estate and the office of trustees ; 
and, consequently, it descended to the heir at law of 
the testator, who was the cestui que trusty until, upon, 
her own application, it was vested in Litton, by the 
decree of a Court of competent jurisdiction, and, by 
necessary implication, divested out of her. In this novel 
state of the case, it might not be possible to hold that 
the statute of limitation could attach before the appoint- 
ment of Litton, in November, 1860. The effect of the 
disclaimer of the trustees, being to cast the legal estate 
upon the cestui que trusty by operation of law, from 
the instant the will took effect ; and thus to unite in 
her both the legal and equitable estates, (but without 
effecting a technical meryer of the latter estate in the 
former, under the peculiar circumstances; Id. 357,) it 
is difficult to perceive how the statute could have any 
operation against her so long, at least, as she remained 
under the disability of infancy; and when that ceased, 
whether before the appointment of Litton, is not shown. 
But, however this may be, we think it sufficient, for 
the determination of the case in hand, that Litton, the 
trustee appointed by the Court, is now forever barred 
of his action. By the decree of the Court, the legal 
estate was in him exclusively; and the trust was a con- 
tinuing trust, until the youngest child of Caroline should 
arrive at full age. From the time of his appointment. 



DECEMBER TERM, 1858. 79 

A. D. O088 V, Moses Singleton ei al. 

the statute unquestionably began to operate ; and having 
delayed more than seven years to bring suit for the 
recovery of the property, the defendant's title has be- 
come ^'indefeasible," by the express terms of the act of 
1819, as against the trustee, and equally so as against 
the certuxB que trust 

We have assumed, for the purpose of this decision, 
that the sale to complainant, under tbe decree, was 
Toid, as against the infant cestui que triAst, on the 
ground that she was not a party to the suit; but it is 
not thought necessary to discuss that question, as it is 
conceded that, by the decree, though void, the purchaser 
was clothed with such an apparent legal title, as brought 
him within the protection of the first section of the act 
of 1819. 

As Mrs. fiagan and her children are not before us 
in the present case, we cannot, in form, make a bind- 
ing decree against them; but we do so, in effect, as 
the determination of the question presented by the re- 
cord, necessarily involves the determination of their rights, 
and the validity of their title. Wooldridge v. Planters 
Bank, 1 Sneed, 297. 

The principle of the case of Cunningham v. Sharp^ 
11 Hurcph., 116, 119, that the purchaser will not be 
compelled to accept the title, if the possessory right of 
the legal owner of the land be merely barred by ope- 
ration of the second section of the act of 1819, does 
not apply to this case. Here the rights of all adverse 
claimants are cut off, and their title absolutely extin- 
guished by force of the first section of the act. 

The decree will be afSrmed. 



80 NASHVILLE : 



W. S. WiUiazns t>. 8. T. Love, Exr., &c. et aL 



W, S. Williams v, S. T. Love, Exe., &c. et al. 



1. Lien. Equality among partners. Partners in lands have an equity 
against each other, for the purpose of producing equality among them- 
selves ; and this equity fastens itself, and is a lien, upon their respect- 
ive interests in the partnership lands, of which neither can be de- 
prived by the other, or a creditor of his, or purchaser from him with 
notice. 

2. Same. Same, Death of the partner having the lien. It is immateri- 
al whether the amount of the inequality is ascertained at ihe death of 
the partner in whose favor this inequality exists. If the indebtedness 
arise from transactions occurring in the lifetime of such partner, the 
lien may be enforced by his personal representative. 

8. Same. For indebtedness to person holding the legal title to land. If 
two persons are the joint owners of lands, but the legal title is in one 
of them, and the other, who has a mere equity in the land, is in- 
debted to the one who has the legal title, the latter cannot be forced to 
part with the legal title, until the discharge of his indebtedness to him, 
and until he is freed from liability for him. 

A, Same. Same, Rights of purchasers and creditors. A purchaser of 
an equitable title must always abide by the case of the person from 
whom he buys. And if the person thus having an equitable interest 
in land, sell or mortgage the same, or his interest is attached by a 
creditor, the purchaser, mortgagee, or creditor, takes it incumbered 
with the equity existing against him. 

6. Same. Same, Rights of the personal representative. If the party 
thus holding the legal title, and an equitable lien on the land for sat- 
isfaction of indebtedness to him, dies before the enforcement of such 
equitable lien, the same right exists in favor of his personal represent • 
ative, heirs and devisees. 

6. Same. Sams, When mxjrtgaget becomes indebted to the person holding 
the legal title. If a person who has an equity in land, mortgages the 
same to a third person, and the mortgagee becomes indebted to the 
person holding the legal title to the land, and then assigns his claim 
upon the mortgagor, together with his lien, the land, by reason of the 
indebtedness of the mortgagee, becomes subjected to an additional 



DECEMBER TERM, 1858. 81 

W. 8. WilliAmfl v. 8. T. Love, Exr., &c. et al. 

equity against Kim, and his assignee occupies no higher ground, and 
must yield to the superior equity of the person holding the legal 
title. 



FROM DAVIDSON. 



This cau8e was heard at the November Term, 1858, 
before Chancellor Frierson. Decree against Williams, 
and he appealed. 

William Thompson, for the complainants. 

F. "B. Fogg, for the defendants. 

Wright, J., delivered the opinion of the Court. 

On the 1st of September, 1837, John C. McLemore 
executed to William M. Gwinn, a deed of trust upon 
the one undivided moiety of two tracts of land entered 
in the name cf Charles J. Love, situated in the county 
of Dyer, and State of Tennessee. 

One of these tracts contained 5000 and the other 
1700 acres, and the deed of trust recited that the other 
moiety belonged to Charles J. Love. 

On the 10th of November, 1837, this deed of trust 
was registered in Dyer county, and purports to have 
been executed to secure pre-existing debts, due from 
McLemore to Gwinn. 

On the 29th of November, 1847, Gwinn assigned to 

complainant, William S. Williams, the claim he so held 

upon McLemore, with the trust, to secure its payment. 

These lands had been located by W. B. Jones, who 
6 



82 NASHVILLE t 



W. S. Williams «. S. T. Love, Exr. &c. et aL 

was employed by Charles J. Love and McLemore for 
that purpose ; and by a decree of this Court, rendered 
the 19th of February, 1846, one Woodfolk, as the as- 
signee of Jones, recovered jointly against Samuel T. 
Love, as the executor of Charles J. Love, and also 
against said McLemore, the sum of $2,083.60, with in- 
terest from the. 1st of January, 1846, as compensation 
to the locator, Jones, for locating said two tracts of 
land, and for other small amounts against them ; and 
one-third of the costs of that suit — the whole of which 
Charles J. Love's executor paid — McLemore being unable 
to pay any part of it. 

It further appears that Samuel T. Love, as the exec- 
utor of Charles J. Love, on the 4th of March, 1843, 
obtained a decree in the Chancery Court at Franklin 
against John C. McLemore, for $3,867, upon which ex- 
ecutions have been run, and returned no property found. 

McLemore and Charles J. Love had been partners in 
the purchase and location of land warrants ; and this 
last recovery grew out of matters pertaining to the 
partnership. 

The amount due Charles J. Love's estate by McLe- 
more, on account of these two recoveries, on the 22d 
of May, 1856, was $8,773.98, and the same remains 
unpaid. 

Gwinn and Charles J. Love had been partners in 
the manufacture of iron ; and the latter having died in 
July, 1837, a bill was filed on the 1st of September, 
of that year, by Samuel T. Love, as the executor of 
Charles J. Love, against Gwinn, for a settlement of the 
partnership; and on the 13th of June, 1851, a decree 



DECEMBER TERM, 1858. 83 

W. S. Williams u. S. T. Love, Exr. &c. et aX. 

was had in his favor against Gwinn^ for $80,994.00, and 
this also remains unsatisfied. 

Charles J. Love, in his lifetime, had made a eove* 
nant with McLemore, to convey him the one undivided 
half of the 1700 acres, and had also made him a trans- 
fer of the one undivided half of the 5000 acres, upon 
a copy of the entry; but it was agreed between them 
that the grants should issue in Love's name. 

The grants did, accordingly, issue to Charles J. Love, 
and the legal title to said lands stand now in the heirs 
and devisees of said Charles J. Love. 

It is to be inferred from the record in this cause, that 
the two tracts of land aforesaid, belonged to the part- 
nership lands of McLemore and Charles J. Love. 

On the 8d of September, 1847, Samnel T. Love, as 
the ezecutor of Charles J. Love, together with his heirs 
and devisees, filed a bill against McLemore, seeking to 
subject his interest in the said two tracts of land to 
the payment of his half of the Woodfolk decree, and, 
also, to the decree of the 4th of March, 1843, charging 
that they had a lien upon his interest in said lands. 

On the 12th of April, 1849, William S. Williams 
filed his bill against Charles J. Love's executor, and 
heirs, and devisees, and, also, against McLemore and 
Gwinn, upon the mortgage debt assigned to him by 
Gwinn, claiming priority out of said McLemore's inter- 
est in said lands, and asking for an injunction against 
Charles J. Love's executor, heirs and devisees, and that 
the legal title of one-half of said lands be divested out 
of them, and sold to pay his debt. 

The executor, and heirs, and devisees of Charles J. 
Love, insist that before they shall be compelled to part 



84 NASHVILLE: 



W. S. Williams v. S. T. Love, Exr- Ac. et oL 



with the legal title to said McLemore's moiety of said 
lands, the debt due them from him, as well as the debt 
due from Gwinn, must first be paid. 

And the question is, whether their rights and equi- 
ties are not superior to the equity of Williams? 

We think if it were necessary, it might fairly be 
deduced from this record, that the whole indebtedness 
of McLemore to Charles J. Love, arose out of transac- 
tions connected with their partnership in land warrants 
and lands, of which these two tracts were a part. If 
so, Charles J. Love, at his death, for the purpose of 
producing equality between them, had an equity against 
McLemore, which fastened itself upon his interest in 
these lands, and of which he could not be deprived by 
McLemore or any creditor of his, or purchaser from 
him with notice. A farteori would this be so as to Mc- 
Lemore's half of that part of the decree in favor of 
Woodfolk, which was given as compensation for the loca- 
tion of these very lands. Sweat et ah v. Hemony 5. 
Hum. 49; Gee v. Qee, 2 Sneed, 396. 

.And it can make no difference that at Love's death 
the amount of inequality between them had not been 
ascertained by a decree; and that the claim of the 
locator existed in the form of a joint liability which 
was not satisfied by the heirs and representatives of 
Charles J. Love until long afterwards. 

They nevertheless arose from transactions occurring 
in the lifetime of Love, and the equity existed at that 
time. 

But if we were to assume that the indebtedness to 
Charles J. Love by McLemore, and his liability for him 
to Jones or Woodfolk arose from independent transac- 



DECEMBER TERM, 1858. 85 



W. S. Williams v. S. T. Love, Exr. Ac. et al. 

tioDS, unconnected with these lands, or with the part- 
nership, he could not have forced bim to a conveyance 
of his half of these lands, without paying his indebted- 
ness to him, and freeing him from liability for him. 

And the same rights, precisely, exist in favor ox the 
executor, and heirs, and devisees of Charles J. Love. 
They have the legal title to these lands, and cannot be 
forced to part with it until tho debt due from McLe- 
more is paid. 

And the same rule applies to Gwinn. If he had 
filed the bill he could not compel a sale by the execu- 
tor, heirs and devisees of Love, who had the legal title 
until he would do equity by paying not only the debt 
due from McLemore, but also the debt due from him- 
self to Love's estate, which has been ascertained by the 
decree aforesaid. 

The transactions between Charles J. Love and Gwinn 
also occurred previous to July, 1837, the time of the 
death of the former, or the debt arose from transac- 
tions occurring prior to that time. 

Gwinn, as we shall see, took his mortgage incum- 
l>ered with the equity existing against McLemore ; and 
in his hands it became subjected to an additional equity 
against him, because of &is indebtedness to Love's estate, 
and the equity of the estate being at least equal to 
that of McLemore or Gwinn, and the executor, heirs 
and devisees of Love having the legal title in these 
lands, must, in a Court of Chancery, prevail. Turner 
V. Pettigrew et al., 6 Hum. 438, 440; Sweat et als. v. 
ffenson, 5 Hum. 49, 50; 10 Yer. 105. 

Williams, in this case, is in no better situation than 



86 NASHVILLE : 



W. S. WiriamB v, S. T. Love, Exr. &c. et al. 

Gwinn, and Gwinn in no better condition than McLe- 
more. 

Tbere is no nJe iu equity better settled than this, 
that a purchaser of an equitable title must always abide 
by the case of the person from whom he buys. Craig 
V. Leiper et aLj 2 Yerg., 193. 

The questions inyolved in this cause were decided by 
this Court in the late unreported case of Johnston^ Trus- 
tecy V. Napier et ah 

M. C. Napier was, in equity, entitled to certain lands, 
which had been entered and granted in the name of 
Thompson. The former sold these lands, with others, to 
E. N. Napier upon time, and bound himself to make a 
title. He made an assignment for the benefit of his 
creditors, by which Johnston, as trustee, became entitled 
to the debt for the purchase money of the land due 
from E. N. Napier. When Thompson was called on by 
M. C. Napier, or Johnston, his trustee, to convey, so 
that the title to E. N. Napier might be completed, he 
refused, unless M. C. Napier would indemnify him for 
his liabilities as surety and endorser, and also, pay him 
a debt due from M. G. Napier. 

This Court decided he could not be compelled to 
convey unless indemnified and his debt paid. 

Decree affirmed. 



DECEMBER TERM, 1858. 87 



M. W. Woodruff v. Nashville and Chattanooga Railroad Company. 



M. W. Woodruff r. Nashville and Chattanooga Rail- 
road Company. 

1. LiKN. General and special. Liens arc of two kinds, general and par- 
ticular, or special. A particular lien is the right to retain a thing for 
some charge or claim growing out of or connected with that identical 
thing. A general lien is the right to retain a thing not only for charges 
and claims specifically arising out of, or connected with the identical 
thing, hut also for a general halance of accounts between the parties 
in respect to other dealings of a like nature. 

2. Pactob. Lien upon goods eonsiffned. Possession. Where the consignor 
remains owner of the goods consigned, no special property can exist 
in the factor, or any lien general or special, unless he have possession, 
either actual or constructive, of the goods. If the goods are in 
transitu^ or if the factor has only a right of possession, the lien does 
not attach. 

3. Sams. Same. Power of the owner. If the factor has no property 
in the goods, and no lien upon them, the owner has a perfect right to 
dispose of them as he may please, and the factor cannot control him 
in this right. 

4. Same. Questi<m reserved. Can a factor, who has neither the actual 
nor constructive possession of the goods, and no property in them, 
maintain an action against a mere wrong-doer, acting in opposition 
to the rights of both him and the owner ? 

o. Same. Same. If a factor has made acceptances, or incurred liability 
upon the faith of the consignment of goods to him, but has no prop- 
erty in them, nor possession, cither actual or constructive, do such 
acceptances or liability give him a lien upon or property in the goods 
consigned ? 

C. Same. Lien ceases when liability discharged. If such lion exists, 
it ceases upon payment of the bills drawn, or liability incurred. And 
if the factor is under no liability for the consignor, or owner, at the 
time of the institution of his suit, it cannot be maintained. 



FROM DAVIDSON. 



On the 22d of May, 1856, one A. G. Henderson 
shipped by the defendant 123 casks of bacon, consigned 



88 NASHVILLE : 



M. W. Woodruff v. Nashville and Chattanooga Railroad Company. 



to the plaintiff. Bj mistake of the agent of the de- 
fendant, the bacon was directed to Charleston, to the 
care of McGreery & Hook, at Chattanooga, Hook hay- 
ing been interested in some of the previous purchases 
of Henderson. Hook, considering himself interested in 
the bacon, sold it at Chattanooga. Henderson, about 
the time of the shipment of the bacon, wrote to "Wood- 
ruff informing him that he had forwarded the bacon to 
him; and, on the faith of it, drew two bills of exchange 
on him, amounting to (2,800. Woodruff accepted the 
bills, and wrote to Henderson that the bacon had not 
been received. Henderson, on being informed of the 
change in the shipment of the bacon, and its sale, wrote 
to Woodruff explaining it. The bills were protested and 
returned to Henderson, who paid them, and obtained 
a credit, on account with Hook, for the proceeds of the 
bacon. Woodruff sued the company for not delivering 
the bacon to him, as specified in their receipt. Under 
the charge of Judge Baxter, there was a verdict, and 
judgment for the defendant. The plaintiff appealed. 

John Reid, for the plaintiff. 

J. M. Wilkin, for the plaintiff, argued: 

1. That the Court below erred in charging the jury 
" that the plaintiff, as factor of Henderson, would have 
a lien only upon the goods of the principal in the actual 
possession of the factor, and until they came into his 
actual possession the consignor could control them; that 
the delivery of the goods to the common carrier, and 
the taking a receipt or bill of lading from the carrier. 



DECEMBER TERM, 1858. 89 



H. W. Woodruff v. Nashville and Chattanooga Raslroad Company. 



specifying the goods to be delivered to the factor, would 
not constitute such a possession as would support a lien 
for the balance due on account of previous dealings/' 

The law is, ^^that where a factor makes advances, 
and incurs responsibilities on account of consignments to 
him, the bill of lading vests such property in him that 
he may insure or sell the goods on the security and 
faith of the consignment. And the consignor cannot 
stop them without repaying what the factor has advanced, 
or is liable for/' Jordan v. JameSy 5 Ham., 88, in 
United States Digest, p. 418. 

If the bill of lading has been assigned over to the 
consignee, and he has actually come into possession of 
it, the bill of lading carries the title to the property, 
and is valid against the principal, especially if the con- 
signor is indebted to the consignee. Ryley v. Snell^ and 
Walter v. RoB9y 2 Wash. C. C, 403 and 283, U. S. 
Digest, 414; Currey v. Rouhtone^ 2 Lem., 110, 113; 
2 Kent, pp. 548, 549, &c. If this doctrine be true, 
then Henderson, the consignor, would not even have had 
the right to stop the bacon in transitu. But the proof 
clearly shows that the defendant's agent at Smyrna 
misdirected the bacon, without the knowledge, order, or 
consent of either the consignor or consignee, and that it 
was not until long afterwards that they learned the des- 
tination of the bacon. 

Again, care must be taken by the common carrier to 
deliver the goods to the right person, according to the 
tenor of the bill of lading, else it is a conversion of the 
property. Story on Bailments, § 545. 

Henderson intended to pass, and did pass all his 
right, title and property in and to the bacon, by 



90 NASHVILLE : 



M. W. Woodruff v. Nashville and Chattanooga Eailroad Company. 



delivering the defendant's receipt to the plaintiff, and 
plaintiff can onlj look to the defendant, either for the 
goods or damage for their loss, because he holds de- 
fendant's bill of lading, and it becomes his duty to see 
that the defendant complies with its original contract 
under it. 

Henderson so regarded it, because he wrote plaintiff 
that he would send him other bacon of the same quality 
and quantity in lieu thereof, but which he failed to do. 

2. The Court erred in charging that the onus 
was on the plaintiff to prove that the payment of the 
acceptances was not made until after he had instituted 
suit. 

How could the plaintiff be presumed to know that 
the acceptances had been paid by the drawer, and were 
not outstanding against him? 

The plaintiff, by accepting, had become the principal — 
the first payor — and therefore the presumptioES are all 
in his favor that he was still bound; and it became the 
duty of the defendant to show no legal obligation of 
plaintiff on the drafts at the time of bringing suit. 

3. The Court erred in refusing to charge, that if 
the bacon was wrongfully directed by the agent at 
Smyrna, in consequence of which misdirection the bacon 
was lost to the plaintiff, the defendant would be liable 
to the plaintiff, although the act of the agent was sub- 
sequently ratified by Henderson, the consignor. 

If the plaintiff had acquired any interest or title in 
the bacon, by his acceptances and delivery to him of 
the bill of lading, upon which the acceptances were 
predicated, it was beyond the power of Henderson, the 



DECEMBER TERM, 1868. 91 



M. W. Woodruft* v. Nashville and Cbattaoooga Bailroad Company. 



consignor, to ratify a conversion of the property by the 
defendant to the hazard, detriment, and damage of the 
plaintiff. 



EwiNG & Cooper, for the defendant. 

His -honor charged the jury, that if Henderson was 
the owner of the bacon, and Woodruff his factor or com- 
mission merchant, and Henderson consigned bacon to him 
for sale, and it went to another person, who sold it and 
paid the money over to Henderson, that Mr. Woodruff 
would have no right of action against the railroad, 
although Henderson was indebted to Woodruff. That 
the lien of a factor for a general balance, or previous 
indebtedness, only attached to property in his possession ; 
and as he never had possession of this bacon, he acquired 
no lien for this purpose. If Mr. Henderson drew bills 
founded on this shipment of bacon, and Woodruff accepted 
them, even though the destination of the goods was 
changed before the drawing or acceptance, then, as long 
as Woodruff remained liable on these bills, he could have 
held the railroad liable; but when Henderson took up 
the bills and received the proceeds of his bacon from 
Judge Hook, then the action of Mr. Woodruff could 
not be maintained. 

We insist this charge is, substantially, correct. 

If a shipper of goods is the sole owner, and they 
are merely forwarded to a consignee for sale, the owner 
may change the direction of the goods, sell them before 
they reach their destination, or destroy them; and this 



92 NASHVILLE : 



M. W. Woodruff v. Nashville and Chattanooga Railroad Company. 



is a full answer to any action by the consignee. Story 
on Bailments, § 578; Angell on Carriers, § 495. In 
order to maintain a suit against the carrier, there must 
be a property in the goods, or a special agreement. 
Angell, § 499. 

We know of no authority for an alteration of this 
rule in a case where the consignor intends to draw on 
the consignee for the proceeds of sale, and does in fact 
draw, and the consignee accepts the bills, more especially 
if the destination of the goods is changed before such 
draft and acceptance, and a right of action already ac- 
crued to the consignor. Angell, § 511 ; 11 Adolp. & 
Ellis, 260; 2 Kent Com. 831. If we are wrong, how- 
ever, in this opinion, and the Circuit Judge was right, 
still, when these bills were paid by Henderson, and he 
received the proceeds of the bacon from Hook, the 
right accruing to WoodrufiF was gone, and fell with his 
interest acquired in the bacon. 

The lien of a factor never attaches on goods in 
transitUj unless on account of money advanced, or bills 
accepted on their faith, and not even then, when the 
goods are never actually received. Story on Agency, 
502, 486, 487; 3 Term. Rep., 119, 783. 



Wright, J., delivered the opinion of the Court. 

We have been unable to find any error in the judg- 
ment of the Circuit Court in this case for which it 
should be reversed. 

The plaintiff was not the purchaser or owner of this 
bacon. If he had been, the delivery to the defendant, 



DECEMBER TERM, 1858. 98 



M. W. Woodruff v. Nashville and Chattanooga Railroad Company* 



as a common carrier, for transportation to him, would 
have entitled him to its safe delivery; and neither A. 
G. Henderson or the defendant could lawfully have 
changed its destination, or diverted it from him. 

But here is a different case altogether. Henderson 
wag the owner of the bacon, and the plaintiff merely his 
factor to sell it on his account. It is not necessary for 
us to consider whether the plaintiff, standing in the 
relation which he did to this property, could maintain 
an action against a mere wrong-doer, acting in opposition 
to the rights both of him and Henderson, the owner. 
The case here is the same as a contest between him 
and the owner; for Henderson has sanctioned all that 
the defendant did, and has, in fact, received the pro- 
ceeds of the bacon, and is satisfied. 

If the factor have no property in the goods, and no 
lien, the owner has a perfect right to dispose of them 
as he may please, and the factor cannot control him in 
this right. Walter et al, v. Ross et aL, 2 Wash. C. G. 
Rep., 283 ; Be Forest v. The Fulton In. Co., 1 Hall's 
Rep., 84, 116; Story's Agency, § 872. 

The case then resolves itself into this : Had the 
plaintiff, as against Henderson, any property in this 
bacon, or any lien upon it? That he had neither we 
think clear from the authorities. 

Mr. Story, in his work on Agency, § 864, says: 
Liens are of two sorts, particular and general. A par- 
ffcular lien is usually defined to be the right to retain 
a taing for some charge or claim growing out of or 
connected with that identical thing; such as for labor, or 
services, or expenses bestowed upon that thing. A gen- 
eral lien is a right to retain a thing, not only for 



94 NASHVILLE : 



M. W. Woodruff v. Nashville and Chattanooga Railroad Company. 



charges and claims specially arising oat of or connected 
with the identical thing, but also for a general balance 
of accounts between the parties in respect to other deal- 
ings of the like nature. It is less favored, and is con- 
strued somewhat more strictly by Courts of law than a 
particular lien; although, certainly, the tendency of late 
years in the commercial community has been rather to 
expand than to restrict the cases in which it is to be 
implied by the usage of trade. 

But no special property can exist in the factor, or 
any lien, general or particular, unless he have possession, 
either actual or constructive of the goods. I speak of 
the case where the consignor remains the owner, as did 
Henderson in this case. 

By constructive possession, is meant the possession of 
his servants or agents in the proper discharge of their 
duty. And it cannot be made to apply to the defend- 
ant in this case. For it seems to be well settled, that 
if the thing has not arrived to the possession of the 
factor, but is still in transitu, or, if he has only a 
right of possession, the lien does not attach. Story on 
Agency, sec. 361; 3 Kent, 638; Kinlach v. Craig j 3 
Term. Rep., 119, 783; Smet v. Pyne, 1 East, 4; 2 
Wash. C. C. Rep., 283. 

Chancellor Kent says : That even though the factor 
may have accepted bills upon the faith of the consign- 
ment, and paid part of the freight; yet he can have 
no lien, unless the goods of the principal do, in fact, 
come to his hands ; and for this, he cites the case in- 
Term. Reports. 

That case, when examined, will, we think, be found 
decisive of this: 



DECEMBER TERM, 1858. 95 



H. W. Woodruff v. Nashville and Chattanooga Railroad Company. 



The jadgment of the Court of King's Bench, in that 
case, was affirmed in the House of Lords, by the unani- 
mous advice of all the Judges. The Judge, in deliver- 
ing the opinion of the Judges, observed, that the par- 
ties acted entirely upon the faith of the agreement be- 
tween them; that they (the bankrupts) should accept the 
bills drawn on them by the Stienes, and should indem- 
nify themselves out of the produce of the sales; and 
that the transaction between them, with respect to the 
consignments, was as between principal and factory and 
not as between vendor and vendee; that, therefore, 
Laudiman and Graham, (the factors,) could have no 
property in the cargo ; and the right of stopping in 
transitu was out of the question, that never occurring 
but as between vendor and vendee. And for this he 
relied on the case of Wright v. Campbell j 4 Burr., 
2050. That the bankrupts could have no lien in the 
case, as the special verdict found that the goods never 
got into their possc'ssion. That though they might have 
given their acceptance on the faith that these consign- 
ments would be made to them, yet still it was an execu- 
tory agreement^ for the non-performance of which only a 
right of action accrued^ but that no property in the 
goods was thereby vested in them. 

In that case, the factors, Laudiman & Graham, who 
resided in London, had become liable for Stiene, the 
consignor and owner, who lived in Scotland, by accept- 
ance made upon the faith of the consignments, to a 
large amount; and besides, there was a heavy balance 
due them on previous transactions, and they were with- 
out funds to meet it. They had been advised by letter 
of the shipment; had received the invoice and bill of 



96 NASHVILLE : 



M. W. WoodrufT v. Nashville and Chattanooga Bailroad Company. 



lading; and before the arrival of the vessel, Stiene, the 
consignor had gone to London and conversed with them 
as to the cargo, giving directions as to its sale, and 
had caused them to have it insured, the premiums being 
charged to him. After his departure, the vessel and 
cargo reached London, and they paid a part of the 
freight, and were urged by the captain, to at once un* 
load the ship and receive the cargo ; but having stopped 
payment, they delayed until it was taken under a writ 
of sequestration against Stiene, the consignor, who never 
paid the bills, which were proved as debts against the 
consignees. And yet it was held they had no lien and 
no property in the cargo. 

Judge Story, in section 377 of his work on Agency, 
says : '' If goods come to the possession of the factor 
after a secret act of bankruptcy committed by the prin- 
cipal, the factor will not be entitled to retain them 
against the assignees for advances or acceptances made 
after such act of bankruptcy, upon the faith of the 
consignment of the goods to him, although such act was 
unknown to him at the time of the advances or accep- 
tances ; for the act of bankruptcy divests the property 
out of the bankrupt." 

And he says: ^'Whether the like effect would be 
produced when the act of bankruptcy was committed 
after the advances or acceptances were made, and while 
the goods were in transitu to the factor, is a point 
upon which doubts have been entertained; but the 
weight of judicial opinion seems against the lien." 

But it is unnecessary for us, conclusively, to decide 
here, that the dkcceptances or liability on the part of the 
plaintiff, gave him no lien, and no special property in the 



DECEMBER TERM, 1858. 97 

W. R. Cornelius and D. W. Davis v. Joseph Merritt. 

goods Bs against Henderson, because the Gircait Jadge, 
in his charge to the jury, held the law upon that point 
to be for the plaintiff; and manifestly, if the lien ex- 
isted at all, it could only be as to that transaction, and 
ceased upon the payment of the bills by Henderson. It 
could not be extended to the general balance remaining 
on account of previous dealings. 

We do not think the Circuit Judge erred in charging 
the jury, that it lay upon the plaintiff to show he was 
under the liability for Henderson by these acceptances 
at the institution of his suit. How could he claim any- 
thing, or move the Court in his favor, unless he showed 
a lien; and could the lien exist if there was no lia- 
bility? The bills were dishonored in August, 1856, and 
Henderson, who seems to be solvent, proves they were 
protested, and he paid them to the bank, but at what 
time, he does not say. The suit of the plaintiff was 
not brought till March, 1857. Prima faci^y at least, 
they were paid before the institution of the suit. 

Judgment affirmed. 



W. R. Cornelius and D. W. Davis v. Joseph Merritt. 



1. pRAcncK AND Pi.KADiNO. Writ of Error, PUa not filed. Act 
of 1852, eh, 162, {{ 4, 6. Coda, {J 2865, 2866, 2872, 2878. Since the 
passage of the act of 1852, ch. 152, {{ 4 and 5, the provisions of 
which are iDcorporated into the Code, sections 2865, 2866, 2872 and 
2878, the want of a plea in a record brought up hy writ of error, is 

7 



98 NASHVILLE : 



"W. R. Cornelius and D. W. Davis v. Joseph Merritt. 

 ^ — ^— _^^__— 

regardod as a matter of form for which the judgment of the Court be- 
low will not be reversed. 

2. Samx. Account Record. BUI of exceptions. An account, unless 
made so by a bill of exceptions, is no part of the record in a cautfe^ 
and cannot be noticed upon a writ of error, so as to raise the question 
whether there is a variance between the parties to the suit, and the 
account sued on. 



FROM DAVIDSON. 



This cause was tried at the May Term, 1858, BaXt 
TERji J., presiding. Verdict and judgment for the plaiji^ 
tiff. There was x^o bill of exceptions filed, and the 
cause was brought up by writ of error. 

A. L. Demoss, for the plaintiffs in error. 

J. 0. Thompson, for the defendant in error. 

Wright, J., deliyered the opinion of the Court. 

This was an action of debt in the Circuit Court of 
Davidson county, for goods, wares and merchandize, sold 
and delivered. 

The record contains a declaration, which is in the 
usual form; and further shows, that the defendants were 
duly summonedi to answer to the action. The writ and 
sheriff's return are in the transcript. The declaration 
was filed at the May Term, 1857, and the record shows, 
that the cause was continued at the September and 
January Terms, thereafter. 

At the May Term, 1858, the cause was tried by a 
jury, who, as the record shows, were sworn to try the 



DECEIkfBER TERM, 1853. 99 

W. R. Cornelius and D. W. Davis v. Joseph Merritt. 

issue joined between the parties; and they find the same 
in favor of the plaintiff, and also find the debt dne 
him to be $340.00, and assess his damages for the deten- 
tion of the debt, to $71.40, Thereupon, the Circuit Couit 
gave judgment upon the verdict against the defendants in 
favor of the plaintiff. 

The record shows that, at the trial, the parties ap- 
peared by their attorneys. 

No plea is found in the record, nor was there any 
motion for a new trial, or bill of exceptions filed ; nor 
was there any appeal. Nothing appears to show that 
the defendants were, at the time of the judgment, at all 
dissatisfied with it. 

They have since filed a transcript of the record in 
this Court, and obtained a writ of error; and now ask 
for a reversal of the judgment: 

Ist. For the want of a plea. 

2d. Because the account upon which the recovery 
was had, was due to the firm of Merritt & Co. ; whereas, 
the suit is prosecuted, and recovery had, in the name 
of Joseph Merritt. 

There is nothing in these objections. 

As to the first: Since the passage of the act of 
1852, ch. 152, sections 4 and 5, the provisions of which 
are to be found in the Code of Tennessee, at sections 
2865, 2866, 2872 and 2873, it must be regarded as a 
matter of form, for which we cannot reverse. Wc will, 
if need be, upon a record like this, presume that there 
was a proper plea and issue, and that its omission from 
the record is a mere clerical error, which does not touch 
the merits of the case. Unless a bill of exceptions be 
filed, liow can we say that substantial errors exist ? It 



100 NASHVILLE : 



James L. Allen o. George C. Bain et al. 



is incumbent upon him who asks the reversal of a judg- 
ment to show that it is wrong. If this is not done, 
we must, in favor of the action of the Circuit Court, 
and in affirmance of the judgment, presume that all 
things were regular and proper. 

In a case at Knoxville, at the last term, where 
there were no pleadings in the record, but only the 
writ, verdict and judgment, and no bill of exceptions; 
we refused to reverse upon the ground that we could 
see no errors. 

It is useless to notice the action of the Circuit 
Court at the term subsequent to the judgment, in per- 
mitting a plea to be filed nunc pro tunc. 

As to the second error assigned, the account is to be 
sure, copied into the record, but there is no bill of 
exceptions, and it is, therefore, no part of the record, 
and cannot be noticed; so that the fact upon which to 
raise this objection, does not exist. 

Judgment affirmed. 



Jambs L. Allen v. GsoRaE C. Bain et al. 

1. Eegistration. Laio of the owners domicil prevailSf in alUtiation of 
personal property. The transfer of personal property is controlled by 
the laws of the owner's domicil, or the place of transfer, no matter 
where the property may be situated ; but in ascertaining and giving 
preferences and priorities, the government where the property is situ- 
ated will not extend this comity so far as to prejudice its own citizens, 
but will protect their interests. 

2. Same. Assiffnments. Pennsylvania. Registry act of. By the law 
of Pennsylvania, << all assignments, so as aforesaid to be made and 



DECEMBER TERM, 1858. 101 



James L. Allen v. George C. Bain et aL 



executed, which shall not be recorded in the office for recording deeds 
in the county in which such assignor resides within thirty days after 
the execution thereof, shall be considered null and void, as against any 
of the creditors of the assignor." 

3. Same. Samt. Same, What it embraces. Different in Tennessee. 
This act is held to embrace assignments of legacies in payment of debts 
due from the assignor. But, by the construction given to the registry 
acts of Tennessee, they do not embrace legacies. 

4. Samk. Same, Attachment. Priority. Case in judgment. B, to 
whom a legacy was coming in Tennessee, transferred it in Pennsylva- 
nia, the place of his domicil, in payment of a debt. The assignment 
was not registered in Pennsylvania, but was registered in Tennessee. 
A, a creditor of B, attached said legacy for the satisfaction of his 
debt. The attachment was levied after the registration of the assign- 
ment in Tennessee. Held, that the assignment not having been regis- 
tered in Penns} Ivania, it is void against the creditors of B, and the 
attaching creditor, A, has priority of satisfaction. 



FROM DAVIDSON. 



The bill of the complainant was dismissed by Chan- 
cellor Fribrsok, at the November Term, 1858. He ap- 
pealed. 

R. J. Meigs, for the complainant. 

Ist. As to the validity and operation of the assign- 
ment, the lez loci ^contractus governs. Story Gonfl. 423 ; 
Borrell on Assignments, 336, 337, &c. 

By the law of Pennsylvania, " all assignments of 
prroperty in trust made by debtors to trustees, on ac- 
count of inability, at the time of the assignment, to 
pay their debts, to prefer one or more creditors — except 
for the payment of wages of labor — shall be held and 
construed to enure to the benefit of all the creditors, 



102 NASHVILLE : 



James L. Allen v. George C. fiain et aL 



in proportion to their respective demands," &c. Pardon's 
Digest, Tit. Assignments, A, 2. 

By the same law, all assignments, so as aforesaid to 
be made and executed, which shall not be recorded in 
the office for recording of deeds, in the county in which 
such assignor resides, within thirty days after the execution 
thereof, shall be considered null and void as against any 
of the creditors of the said assignor. Purdon's Dig.; 
Tit. Assignments, B. 8, and notes t and v, from which 
it appears that the assignment must be recorded in the 
proper county, although the personal property be situa- 
ted in another State ; citing 7 Barr. 499. 

The same thing is stated by Burrell on Assignments, 
ch. 21, p. 268, 269. 

2d. By our own act of 1889, c. 26, § 1, deeds, 
powers of attorney, and other instruments for the trans- 
fer or conveyance of property or effects^ real or per- 
sonal, or appointing agents to transact any business 
whatever, and all other deeds of every description^ may 
be proved or acknowledged, &c.; and when so proved, 
&c., may be read in evidence as other registered pa- 
pers, and shall have the like force and effect. 

This deed was registered, it is true, here, before the 
filing of the bill; but it is no notice of anything but 
what appears on the face of it, and nothing appears, on 
the face of it, to indicate that Bain was indebted to 
Bacon & Hallowell, or even to Bacon himself. And it 
certainly can be no notice of any indebtedness of Bain 
to Bacon & Hallowell, unless we interpolate into it what 
is stated in the answers. 

8d. But the assignment is fraudulent on its face. 
It transfers to the trustee Bain's entire interest in Bell's 



DECEMBER TERM, 1858. 108 



James L. Allen v. Qeorge C. Bain et al. 



estate: 1st. To pay an nndefined amount to 0. P. 
McRoberts. 2d. To pay over the balance to Charles 
Hallowell, " to and for his own proper use and behoof.*' 



S. L. FiNLET, for the defendants. 

As to the necessity of registration — 

This transfer or contract was made in Pennsylvania, 
but the proceeds were to be paid and settlement made 
in Tennessee, where the testator's property was, an in- 
terest in which was transferred. 

*' If a contract be made under one government, and 
is to be performed under another, and the parties had 
in view the laws of such other country in reference to 
its construction and force, it is to be governed by the law 
of the country or State in which it is to be executed." 
2 Kent, 459. 

Remedies upon contracts are regulated and pursued 
according to the law of the place where the action is 
instituted. McKissick v. McKissicky 6 Hum., 88; 2 
Kent, 462. 

The law of a place where a contract is made, is, 
generally speaking, the law of the contract, that is, it 
is the law by which the contract is expounded. But 
the right of priority forms no part of the contract itself. 
It is extrinsic, and is rather a personal privilege, de- 
pendent on the laws of the place where the property 
lies, and where the Court sits which decides the cause. 
5 Cranch, 298, 302 ; 12 Wheaton, 862 ; Story's Conflict 
of Laws, sec. 287. 



104 NASHVILLE : 



James L. Allen v, George G. Bain et aL 



But I think the following is conclusive : 
^^But it does not follow that a transfer made hj 
the owner, according to the law of the place of its 
actual situsy would not as completely divest his title." 

And again : " If a person direct a sale of his prop- 
erty, or make a sale of it in a foreign country, where 
it is situate at the time, according to the laws thereof, 
either in person or by an agent, the validity of such a 
sale would scarcely be doubted. Story's Conflict of Laws^ 
sees. 884, 396. 



Garuthers, J., delivered the opinion of the Court. 

Defendant, Bain, is a nephew and legatee of Mont- 
gomery Bell, late of Davidson county. His legacy, being 
one-fourth of the whole estate, after specific legacies, 
amounted to about {5000, and was in the hands of de- 
fendants, Roberts, Watkins and Bell, as the executors. 
The complainant, a citizen of Kentucky, is a creditor 
of Bain to the amount of 92,173.79, by two notes as- 
signed to him by Peter Higgins. 

Allen filed this bill the 22d of October, 1857, against 
the said Bain and the executors, and attached the said 
legacy in their hands. The answer of the executors 
admits the sufficiency of the fund in their hands, but 
allege that they had notice of an assignment by Bain 
of this legacy, to one Stephens, of Philadelphia, for the 
benefit of two other creditors — Aallowell and Roberts. 
By order of the Court, Stephens, the trustee, and these 
creditors, were made defendants. The Chancellor held 



DECEMBER TERM, 1858. 105 

(fames L. Allen v. George O. Bain et al, 

that the assignment was valid, and that Allen was only 
entitled to what might remain after the satisfaction of 
the debts therein provided for, and ordered an account. 
The result was, that Allen had a decree only for S831 
of his debt, that being the balance of the fund remain- 
ing after paying the debts of Roberts, Hallowell, and 
Bacon. 

The question made in argument is, upon the validity 
of the assignment to Stephens, as against Allen's attach- 
ment. It is prior in date, having been made in the 
city of Philadelphia, the SOch of March, 1857, and 
purports to have been acknowledged before one ^^ John 
Binbs, Commissioner of Tennessee," on the next day, as 
appears by his certificate, and registered the 22d of 
June, 1857, in Davidson county. The parties lived in 
Philadelphia where the deed was made, but the executors 
and the fund were in Tennessee. It does not appear 
that the deed was recorded in Pennsylvania. It was, 
however, forwarded to the executors, who handed it over 
for registration, at the time stated, in Davidson county. 

The assignment is for the expressed consideration of 
$2,500 to him in hand paid, by Lewis H. Stephens, of 
'' all the right, title and interest, property, claim and 
demand, of whate\rer nature or kind, whether real, per- 
sonal, or mixed, in possession, remainder, or expectancy, 
and wherever situate, coming to the said George C. Bain 
from the estate of Montgomery Bell, deceased, * * * 
which he is entitled to as one of the heirs of said 
Montgomery Bell, deceased." " In trust, nevertheless, to 
pay O. P. McRoberts, of JSashville," the amount of his 
indebtedness to him, and '' afterwards, to pay over the 
balance coming into the hands of the said Stephens, to 



106 NASHVILLE : 



James L. Allen v, Geocge 0. Bain tt aL 



Charles Hallowell, of the city of Philadelphia, to and 
for his own proper use and behoof." 

It turned out that the amount due to McRoberts 
from Bain, was only $548.57, which, together with other 
amounts paid out by the executors to Bain, and to his 
order, and the amount of his indebtedness to the estate, 
leaves a balance in their hands of $2,883.96. The re- 
port of the Master shows the debt of Hallowell & Bacon 
to be $2,052.69. 

As there is not a sufficient fund to pay both, the 
question is one of priority between the complainant and 
Hallowell & Bacon. 

It is insisted for Allen that the assignment is of no 
force as against his attachment, for two reasons : 1st. 
It is void as to creditors, if no other objection existed, 
because it was not registered or recorded, as required 
by the laws of Pennsylvania, where it was made and 
the parties to it resided. 

It is the general rule that the alienation by assign- 
ment, or otherwise, of personal property, must be con- 
trolled by the laws of the owner's domicil, or place of 
the transfer, no matter where situated, with the excep- 
tion that in ascertaining and giving preferences and pri- 
orities, the government where the property is situated, 
will not extend this comity so far as to prejudice its 
own citizens, but will protect their interests in prefer- 
ence. Burrell on As'gt., 336. 

A transfer of personal property, good by the law 
of the country where made, will, with few exceptions, 
be good everywhere. 1 Swan, 399, citing Story's Con- 
flict, sees. 380, 383 and 384. And the converse of this 
is generally true. 



DECEMBER TERM, 1858. 107 

James L. Allen v. George C. Buin et al. 

The validity and operation of this assignment must 
be tested by the laws of Pennsylvnia. Story on Conflict, 
§ 423. This must extend to all the requirements there 
to make it binding; and whatever defects would avoid 
it there, will follow it here and everywhere. If for 
want of registration it be declared void there, as against 
creditors, so it would be here. By the Pennsylvania 
act, in Purdon's Digest, p. 53, it is declared that ^^ al! 
assignments, so as aforesaid to be made and executed, 
which shall not be recorded in the office for recording 
deeds, in the county in which such assignor resides, 
within thirty days after the execution thereof, shall be 
considered null and void, as against any of the credi- 
tors of the said assignor." 

This statute has been held to apply to the assign* 
ment of property out of the State as well as in it. 
Weber v. Samuel, 7 Bar., § 499 ; Burrell, 268, 269. 

But another question is, whether, by the laws of 
Pennsylvania, the assignment of a legacy is embraced 
by their acts to which we have referred. 

It ha& been held in this State, in one or more un* 
reported cases decided some years ago, that our registry 
acts did not apply to assignments of choses in action. 

Whether this would be so under the statutes of 
Pennsylvania, would depend upon the construction given 
to them by their Courts. These would come to us with 
their statutes, having the same binding force as the law 
of that State, though it might conflict with our own 
construction of a similar statute of ours; the question 
being, not what the law of Pennsylvania should be, in 
our opinion, upon a proper construction, but what it is 
settled t'^ b** f^^r^. Thi^t ir, w« take their construction 



108 NASHVILLE : 



James L. Allen v, George 0* Bain et al. 



of their own statutes to be the correct one in questions 
of this kind. 

liut, after all, there may be no difference between 
lis. Our registry act of 1831, or that of 1839, ch. 26, 
which is, perhaps, the broadest in its terms, in describ- 
ing what may be registered, embraces " deeds, powers of 
attorney, and other instruments for the transfer and con- 
veyance of property or effects, real or personal, or ap- 
pointing agents to transact any business whatever, and 
all other deeds of every description." 

In the case of Marshall et al. v. Fields et aLj de- 
cided by this Court in 1851, it was held that this did 
not embrace an assignment of a claim against a turn- 
pike company, made in trust for the security of debts; 
and, consequently, the fact of registration did not operate 
as notice, because it was not required by the acts to 
be registered. Therefore such an assignment did not 
operate as against attaching creditors of the company, 
being incomplete without notice to the common debtor. 
This case was not reported, but it is in the recollection 
of the member of the Court, who was then on the 
bench, that the point was then distinctly decided and 
applied to other cases. The point settled was, that 
assignments of choses in action, and that would embrace 
legacies, was not intended by the Legislature to be in- 
cluded in the enumeration of instruments required to be 
registered. Whether the Code, in section 2030, enlarges 
the old acts on this subject, need not be examined 
now. 

But it will be observed that "assignments" are not 
in terms included in any of our acts. Although it 
might seem that the words "instruments" or "deeds" 



DECEMBER TERM, 1858. 109 



James L. Allen v. George C. Bain et al. 



would include them; yet the Pennsylvania Legislature 
appears to have thought differently, as it has provided 
for the two cases by distinct acts. 

This word in its largest sense, at least in common 
parlance, signifies the transfer of all kinds of property, 
either absolutely or in trust. But in its more con- 
fined sense, and particalarly in mercantile transactions, 
it is used in contradistinction to sales, and the sense 
in which it is treated of by ''Burrell on Assign* 
ments" is as transfers by way of security for, or in 
payment of debts, and implies the existence of the 
relation of debtor and creditor. Burrell on Assignments, 
3, 4. And this is evidently the sense in which they are 
regarded in the Pennsylvania acts before cited. 

The decisions noted upon the act before extracted 
from Purdon's Digest, 53, at the foot of the same page, 
clearly show the scope given to their act to be such as 
to embrace assignments like this. 

It follows, then, that by the laws of Pennsylvania, 
*aB the assignment to Stephens for the benefit of Hallo- 
well was not recorded, as prescribed by the laws of 
that State, it is ''null and void as against any of the 
creditors of the assignor," Bain. It would, however, be 
good between the parties. 

This view of the case renders it unnecessary to notice 
the other questions made against the assignment, and 
the result is, that the complainant, Allen, by virtue of 
bis attachment of the fund in the hands of the executors 
of Montgomery Bell, to which Bain is entitled as a 
legatee, is entitled to priority of satisfaction over Hallo- 
well and Bacon. 



110 NASHVILLE : 



P. G. S. Perkins et al. v. S. P. Ament, for the use of, &c. 

The decree of the Chancellor to the contrary will 
therefore be reversed to that extent, and decree entered 
here in accordance with this opinion. 



P. G. S. Perkins et al. v. S. P. Ament, for the use 

OF, &c. 

Bills and Notes. I^oie executed to raise money. Surety. If a party 
become surely on a note with the understanding that it shall be passed 
- to a particular individual, and to no one else, he is not liable on said 
note unless passed to that person. But if he signed as surety with the 
general purpose to enable the principal to raise money on the note, 
without limiting him to the person to whom he should pass it, he 
would be liable, although the note was passed to another than the 
payee, and the holder thereof could maintain a suit in the name of the 
payee for his use. 



FROM WILLIAMSON, 



Verdict and judgment for plaintiff, at the March Term, 
1858, Baxter, J. presiding. The defendants appealed. 

John Marshall, for the plaintiffs in error. 

It is insisted that the Circuit Judge should have 
granted a new trial, because the charge was erroneous 
in both branches of the charge. 

In the first branch of the charge no weight is given 
to the fact that the note was payable to the order of 
S. P. Ament; and to defeat the plaintiff's action, not- 



DECEMBER TERM, 1858. Ill 



P. G. S. Perkina et al v. S. P. Ament, for the use of, &c. 



withstandoig tLe form of the note, the burden of further 
proof is thrown on the defendant, to- show the further 
fact that it was his intention that the note should be 
passed to Ament, and no one else. 

The second branch of the charge intensifies the same 
idea. It throws the onus of proof on the defendant, 
of the further fact that he limited him to the person 
to whom he should pass the note, and says that the 
expectation of him and Bryan both, that Ament would 
take the note and pay the money would be insufficient 
to establish this further fact. 

The expression in the charge, the general purpose 
of Perkins, to enable Bryan to raise money on the note, 
is too Yague to relieve the charge from the remarks 
made, and might well have been understood by the jury 
to have meant nothing more than the purpose of raising 
the money on the note from Ament. 

The charge, if not erroneous in other respects, is 
calculated to mislead the jury, and probably did mislead 
the jury, in finding their verdict ; and to this extent is 
erroneous. It is insisted, upon the hypothesis that the 
charge of the Circuit Judge is free from all exceptions, 
that there is not any evidence in the record upon which 
the verdict can rest, showing, or tending to show, that 
Perkins consented or intended that the note should be 
used by Bryan, in receiving the money from any other 
person than Ament. A fair view of Bryan's testimony 
shows directly the contrary. 

It is true that he received the ^50 from Qreenfield 
upon fraudulent representations : but Greenfield by no 
means became the holder of the note in due course of 
trade. 



112 NASHVILLE : 



P. G. S. Perkins et al. v. S. P. Ament, for the use of, &c. 

It is contended that, on this general ground, there 
should he a new trial. 



Foster, for the defendant in error. 

The defendant in error now insists that there was no 
error in the proceedings below, and judgment ought to 
be afiSrmed. 

1. Because the charge of the Court, if erroneous, 
was in favor of the plaintiffs in error, of which error, 
if there be any, the defendant in error cannot complain. 

2. Because there was no error in the admission to 
the jury of Bryan's deposition, as his interest was in- 
different; for if Perkins pays the money, he, Bryan, is 
bound to pay to Perkins. 

3. Because the law implies a good and valuable con- 
sideration in all promissory notes, between the original 
parties thereto and those who claim by endorsement or 
otherwise. Story on Promissory Notes, ch. 6, pp. 199-203. 

4. Because, as Perkins signed the note, and gave it 
up to Bryan, and the note being negotiable, and Green- 
field having upon the faith of that note, in the due 
course of trade, bona fide^ and without notice, advanced 
the money to Bryan, Perkins is, by all rules of com- 
mercial law, liable for the same to the holder thereof. 

5. Because any person is considered a bona fde 
holder, for value, of notes or bills, when he has ad- 
vanced money or other value for them, or taken as col- 
lateral security, or has a lien on them. And from the 
proof in this cause, it is most apparent that Greenfield 



DECEMBER TERM, 1858. 113 

P. G. S. Perkins et cd, v. S. P. Ament, for the use of, &c. 

was a bona fide holder of the note for money advanced, 
and, as such, has the right to enforce its payment hy 
snit, in the name of the payee, for his use. Story on 
Promissory Notes, p. 215. And it is immaterial whether 
Ament knew anything of the suit, or knew anything of 
the transaction, for a Court of Chancery, if necessary, 
would have interposed to protect Greenfield. 

it is insisted by the defendant in error that there 
is no error of fact in the record, and that the charge 
of the Court below was in favor of Perkins and against 
the defendant in error, as we conceive the law to be; 
and, therefore, this Court will not reverse, but affirm the 
judgment. 



Wright, J., delivered the opinion of the Court. 

There is no error in this judgment. The proof makes 
it clear that T. L. Bryan, being desirous of raising 
money, made the bill single upon which the suit was 
instituted, and procured Perkins to execute and sign the 
same as maker with him — as his security, and for his 
accommodation. 

The bill single, thus executed, was delivered by Per- 
kins to Bryan. That this was done to enable the latter 
to sell it, and raise money upon it upon the faith of 
the name of the former, there can be no doubt. 

It was, to be sure, made payable to Ament, because 

it was supposed — and, perhaps, they had good reasons so 

to think — ^that he would advance the money upon it. 

But there is no foundation for the belief that Perkins 
8 



114 NASHVILIiE: 



P. G. S. Perkins et al. v. S. P. Ament, for the U8e of, &c. 



placed Bryan under any restrictions as to the use to be 
made of it, or that it was his intention that it should 
be passed to Ament, and no one ehe. 

Bryan thus having the possession of this note, passed 
it to Greenfield, and received of him, upon it, the sum 
of 9^0; and he haa instituted this suit in the name of 
Ament, to his use, against Perkins, upon the note, to 
recover the amount for which it was given. 

The Circuit Judge charged the juryj that if Perkins 
became surety upon the note, with the intention that it 
should be passed to Ament and no one eUe^y the plain- 
tiflF would not be entitled to recover. But if he signed 
as surety, with a general purpose to enable Bryan to 
raise money on the note, without limiting him to the 
person to whom he should pass it, then the plaintiff 
would be entitled to recover, although at the time de- 
fendant signed the note it was the expectation of him 
and Bryan both, that the note was to be passed to 
Ament, and the money obtained from him. 

This charge is, we think, sustained by the principles 
laid down in Kimhro v. LytUy 10 Terg., 417, and the 
authorities there cited. 

Judge Reese, in delivering the opinion of the Court, 
says: ^'The Chancellor, to sustain the principle determined 
in this case, refers to the cases of The Bank of Rut- 
land V. Buckj 6 Wend., 66, and The Bank of Chenango 
V. ffyde, 4 Cow. Rep., 566. In the former of these 
cases the note was made by Spear and Everett, and 
signed by Buck, as surety, payable to the bank. It was 
made to enable Spear and Everett to raise money for 
their own accommodation. Upon its being offered at the 
bank for discount, the bank refused to discount it; and 



DECEMBER TERM, 1858. 115^ 

P. G. S. Perkins et al. v. S. P. Ament, for the use of, Ac. 

it was fiubsequentlj, and before it was due, delivered 
oyer to House and others, as collateral security for the 
payment of a judgment in their favor against Spear and 
Everett. The suit was brought in the name of the 
bank, but for the use of House and others. It was 
objected that the object for which the note was made 
being to raise money from the bank, and the object 
having failed, it ought to have been returned to the 
surety. It was admitted, that if the Bank had refused 
to advance the money, and a third person had done so, 
as in the case of the The Bank oj Chenango v. Byde^ 
4 Cow. Rep., 567, the surety would have been bound, 
as the substantial object, the raising of money, would 
have been obtained. It was further objected that the 
note was not receieved in the ordinary course of commer* 
cial business, and so as to be governed by the law 
merchant. But Chief Justice Savage, delivering the opin- 
ion of the Court, says: I can see no well-founded 
objection to a recovery upon this note. It was drawn 
for the purpose of raising money for the accommodation 
of the two makers, Spear and Everett, who have had 
the benefit of it." 

It is the same thing as if Perkins had expressly 
assented to the sale of the note to Oreenfield. And the 
fact that it was payable to the order of Ament, and 
never endorsed or sanctioned by him, can make no 
difference. 

Perkins must be regarded as having assented to the 
use of Ament's name for the benefit of Greenfield, in 
order to make the note available against him if a suit 
became necessary.. 



116 NASHVILLE 



Mount Olivet Cemetery Company v. Charles Shabert. 

We have been unable to discover that the charge of 
the Circuit Judge was open to the criticism made upon 
it, and think the verdict of the jury well warranted 
by the proof. 

We therefore affirm the judgment. 



2he 116' 

^^7 ^H Mt. Olivet Cemetery Company v. Charles Shubbrt. 

1. Principal and Aosnt. Aulhoriiy of general agent Principal 
bound by contracts of agent. If a general agent make a contract 
within the scope of hia agency, the principal is boand bj such con- 
tract, though in violation of instructions, unless the party with 
whom the contract is made knew that the agent was violating his in- 
structions. 

2. GiBCuiT CouBT. Charge to the jury* A charge upon a question of 
law having no relevancy to any evidence in the cause, whether erro- 
neous or not, is not ground of reversal, unless it is shown to have 
done harm to the party against whom the verdict is given. 

3. Acoouirr. Assignment of. Practice, The assignment of an account 
vests in the purchaser, only, an equitable interest in it and the promise 
of the debtor to the assignee to pay him said account is necessary to 
enable him to maintain an action in his own name for its recovery. 
Without such promise, the assignee would have to sue in the name 
of the assignor, for his use. 

4. Same. Same. Promise by agent. A promise made by the treasurer, 
of an incorporated company to pay an account transferred to a third 
person, is sufficient to authorize the assignee to sue the company in 
his own name, unless it is shown that the treasurer had no authority 
to bind the company. Authority will be presumed unless the con- 
trary is shown. 

5. Frauds. Statute of. A promise by a company, or its agent, to pay 
an account due from said company, which has been assigned to a third 
person, is not within the statute of frauds, and need not be in writ- 
ing. 

6. Etidekce. Payment. Receipt not conclusive. A receipt of payment 
or delivery is only priTna fa4ne evidence of the fact, and not conclu- 



DECEMBER TERM, 1858. 117 

Mount Olivet Cemetery Company v. Charles Shubert. 

dve, and, therefore, the fact that it recites may be contradicted by 
oral testimony.* 

7. Sake. Depositions. Competency, Objection to must he specific. If 
a deposition contains matter that is relevant and competent, and that 
which is incompetent, an objection, to be available, must be 
specifically made to such parts as are incompetent. A general objec- 
tion to the reading of the deposition will not do. 

8. NoK-striT. Costs. Taxation of. Act of 1794, ch. 1, { 74. Oode^ 
11 8197 and 8201. The plaintiff took a non-suit, which was set 
aside and he taxed with the costs of the Term. No exception was 
taken to the action of the Court. After verdict for the plaintiff, the 
defendant moved the Court to tax the plaintiff with all costs that ac- 
crued before the non-suit, which the Court refused. The Circuit 
Court did not err. The case is not embraced by the act of 1794, ch. 
1, 2 74, nor by JJ 8197 and 3201 of the Code. 



FROM DAVIDSOK. 



This cause was tried at the May Terniy 1858, Bax- 
TBB, J., presiding. Verdict and judgment for the plain- 
tiff. The defendant appealed. 

J. H. McDonald and A. H. Hurly, for the plaintiffs 
in error, cited and commented upon Hill v. ChildresSj 
10 Ter., 516; Act of 1794, ch. 1, § 74; Code, §§ 
3197, 3201; 5 Hum., 624; 8 Yer., 330—5. 

Rbib and Shane, for the defendants in error, relied 
upon the following authorities : 

Chitty on Con., 613-14; 8 B. and C, 395; Addi- 

son on Con., 38, and authorities there cited; 8 Pick., 



'"' A receipt may also contain a contract to do something in relation to the 
thing delivered, and so far as it is evidence of a contract between the 'par- 
ties, it stands on the footing of all other contracts in writing, and cannot 
be contradicted or varied by parol. 



118 NASHVILLE : 



Mount Olivet Cemetery Oompany v. Charles Shubert. 

280; 21 Pick,, 807; Act of 1856, ch. 192; 2 Yer., 
260, 564, 559 ; 4 Ter., 202 ; 8 Hum., 490. 

Wright, J., delivered the opinion of the Court. 

This was an action originally commenced before a jus- 
tice of the peace, and carried by appeal to the Circuit 
Court, where the plaintiff below had judgment for 
976 19 ; and the defendant below has appealed in error 
-to this Court. 

The Circuit Judge charged the jury, that if Stewart 
w^as the general egent of the defendant to superintend, 
control, and manage the cemetery grounds, and that 
the disposition, or renting of the house occupied by 
Shubert, come within the scope of that agency, and 
that. Stewart, as such agent, had agreed with Shubert 
that he might occupy the house free of rent, in that 
case the defendant would be bound by the act of its 
agent, though in violation of his instructions, unless 
Shubert knew that Stewart was violating his instruc- 
tions. 

The counsel of the plaintiff in error insists that this 
charge is erroneous, not because, as an abstract propo- 
sition, it is not the law, but because it is based upon 
a suppositious state of facts which do not exist, and 
that it misled the jury. 

He maintains that C. W. Nance was the general 
agent of the company, and that Stewart was superin- 
tendent of the work^ and that there is not the slightest 
evidence of his general agency, or that he had author- 
ity to rent, or did rent the house of the company to 
Shubert. 



DECEMBER TERM, 1858. 119 

Mount Olivet Cemetery Company v, Charles Shubert. 

This exception to the charge is, we think, unfounded 
in fact. It is true, that Nance is shown to have been 
the general agent of the company, and Stewart the 
superintendent of the work; but there is also proof in 
this record, tending to show that Stewart was likewise 
the general agent of the company, and had authority to 
do, and did do many things not pertaining to the 
superintendency of the work, and from which his authority 
to rent the houses of the company might well be inferred. 
It is true that there is no proof that he did rent this 
house to Shubert, nor is it shown which one of the 
agents of the company did rent it. But it is proved 
positively, as a fact, both by Thomas and James Stew- 
art, that Shubert was to have the house free of rent, 
and also firewood free of charge. He was a married 
man and labored as a hand for the company. It was to 
the interest of the company, that its other laborers and 
hands should be boarded near their work ; and he was 
induced to open a boarding house for that purpose, in 
one of the houses of the company upon its grounds; and 
was to have the house, garden, water, &c., free of rent, 
and likewise firewood free of charge. 

If the jury, therefore, rejected the set-off claimed by 
the company against Shubert, for rent and firewood, we 
think they were well warranted by the proof. 

But if the charge were merely abstract, having no 
relevancy to any evidence in the cause, and were erro- 
neous, much less if free of error, we do not understand 
it to be a ground of reversal; certainly not, unless it 
can be shown to have done harm to the party against 
whom the verdict is given. 2 Meigs' Dig., 775 and 776. 

The next error assigned, is in relation to an item in 



120 NASHVILLE: 



Mount Olivet Cemetery GompaDy v. Charles Shubert. 

the plaintifi's account, of $27.75. It appears the company 
owed one Cunningham that amount, and he owed the 
plaintiff a less sum, and assigned to him in payment of 
the debt, the debt he held on the company, the plain- 
tiff paying him the difference in money. He guaranteed 
the claim to the plaintiff, who afterwards presented it to 
the treasurer of the company, and he promised to pay 
it to the plaintiff, having then no funds in hand to pay 
it. This promise was manifestly made as treasurer for 
and on behalf of the company. 

There is no attempt to show any want of authority 
in the Treasurer to make this promise, and if need be, 
we are authorized to presume it, unless the contrary be 
shown. Angell & Ames on Corporations, sections 290, 
291, a, 292, 293, 298, 809. 

By the purchase of the debt of Cunningham upon 
the company, the plaintiff acquired only an equitable in- 
terest in it, it being merely an open account, and, 
therefore, the promise of the company to the plaintiff to 
pay him, may, upon common law principles, have been 
necessary to enable the plaintiff, at law, to maintain the 
action in his own name. Vide, the note to Nehon v. 
Marley^ 2 Yer., 676, and authorities there collected. 

It is only in this aspect of the case that the prom- 
ise of the company, or its treasurer, can be at all ma- 
terial, for, manifestly, the company owed Cunningham 
the $27.75, and the plaintiff had purchased the debt, 
and was entitled to collect it of the company. 

It is manifest the statute of frauds can have noth- 
ing to do with this promise of the company, since it 
was simply to pay its own debt to the plaintiffs instead 
of to Cunningham, the original creditor, he having as- 



DECEMBER TERM, 1858. 121 



Mount Olivet Cemetery Company v. Charles Shubert. 



signed the debt to the plaintiflf. It is alike manifest, 
that it can make no difference, that Cunningham re- 
mained boand, or guaranteed the debt to the plaintiff. 

It 13 next assigned for error, that the Court received 
parol evidence to explain the receipts found in the 
record from the plaintiff, and from Cunningham to the 
company, and to show that the debts for which they 
were given had not been paid. There was no error in 
this. 1 Greenl. Ev., sec. 805; Angell k Ames on Cor- 
porations, sec. 294 ; 2 Meigs' Big., 859. 

Besides, it does not appear that any specific objec- 
tion was made to this evidence. It is contained in the 
depositions of Thomas and James Stewart, and they con- 
tain much other testimony entirely competent. A general 
objection therefore, such as was made to the reading 
of these depositions, because of the alleged incompe- 
tency of the witnesses, they being competent, did not 
reach the particular part of the proof bearing on these 
receipts. 

The record shows that on the 17th of February, 
1858, the plaintiff took a non-suit, and on the next day, 
upon the application of the plaintiff, it was, by order 
of the Circuit Court, set aside, and the cause re-instated 
as before, and the plaintiff taxed with the costs of that 
term. 

The record does not show the cause of the non-suit, 
nor the reason for setting it aside ; and no exception is 
made to the action of the Court. 

At the next term, and after the cause was tried, 
the defendant moved the Circuit Court to tax the plain- 
tiff with all the costs of the cause up to the time of the 
non^suit. This the Court refused to do, and exception 



122 NASHVILLE : 



J. A. Andersoa et al. v. Allison, Anderson & Co. 

is taken to this action of the Circuit Court, and it is 
now assigned as error. But we are unable to say that 
the Circuit Court erred. We do not think the case is 
embraced by the act of 1794, ch. 1, sec. 74; nor by 
sections 3197 and 3201 of the Code of Tennessee, to 
which we have been referred. 
Judgment affirmed. 



J. A. Anderson et al v. Allison, Anderson & Co. 

1. Practicb AND Pleading. Proferi. Demttrrer. Oyer. The plaintiff' 
is bound to make profert of, and to produce in Court, the notes de- 
clared on, having them in possession. But the omission to file them 
with the declaration, is not a matter that can ho reached by demurrer, 
profert being made in proper form. If the plaintiff fails to file the 
notes, the defendant maj ask to have his demand of oyer entered, and 
have the judgment of the Court whether he is bound to answer until 
the notes are filed. 

2. Same. Same. Same, Motion io take the demurrer from tJie fiU. If 
the defendant demurs because the notes are not filed, it being an im- 
proper defence, the plaintiff may move the Court to order the demur- 
rer to be taken off the file, and to enter up judgment by default, for 
want of a defence to the action. 



FROM DAVIDSON. 



Ttiis cause was heard at the September Term, 1868, 
before Judge Baxter; and judgnent final, by default, 
entered against the defendants, from \7hich they appealed. 



DECEMBER TERM, 1858. 128 

J. A. Anderson et al, v. Allison, Anderson & Co. 

Brien k Cox, for the plaintiffs in error 
J. S. Briek, for the defendants in error. 

McKiNNET, J., delivered the opinion of the Court. 

There is no error in the jadgment by default ren- 
dered in this case. The plaintiffs' declaration was filed 
at the appearance term. It makes profert, in the 
usual form, of the notes sued on; but it seems that 
at the appearance ternc, an informal demurrer was placed 
in the file of papers, assigning as cause of demurrer, 
that the defendants had craved oyer of the notes de- 
clared on, and they had not been produced. At the 
following term of the Court, the plaintiffs' counsel moved 
the Court to order the demurrer to be taken off the 
file, and to enter up judgment by default, for want of 
any defence to the action, and the motion was made 
absolute. 

It is true that, by our law, the plaintiffs were bound 
to make prolert of, and to produce in Court, the notes 
declared on — ^having them in possession. But the omission 
to file the notes with the declaration, was not a matter 
that could be reached by demurrer — profert being made 
in proper form. 

If the plaintiffs failed to file the notes, the defend- 
ants might have asked to have their demand of oyer 
entered; which would have operated in the nature of a 
plea, and upon which the judgment of the Court might 
have been demanded, whether or not the defendants were 
bound to answer without it. The demurrer, for the 



124 NASHVILLE : 



John Hill V. James W. Hinton et al. 



cause stated, was an absurd practice, and it was prop- 
erly taken from the file. 

The facts stated in the bill of exceptions, do not 
better the case for the defendants. We see that the 
notes, though not filed with the declaration, were, in 
fact, filed on a subsequent day of the appearance term, 
and notice thereof given to defendants' attorney. We 
also see from the bill of exceptions, that, before judg- 
ment by default was entered, reasonable time was given 
the counsel of defendants to make defence. And, further- 
more, it does not appear that the defendants have any 
substantial defence to the action. 

Judgment afiirmed. 



John Hill v. James W. Hinton et aL 



1. Summary Procbrdings. Sheriff, Amendment of return. The 
motion, and not the notice that it will be made, is the commencement 
of the suit ; and the sheriff may be permitted to amend his return 
upon a summons at any time before the motion is made, even after 
service of the notice, that it will be made. 

2. Samx. Same. Evidence. Return of summons. In a summary pro- 
ceeding against the sheriff for the non-return of a summons, the en- 
quiry is confined to the face of the return. Extrinsic evidence is not 
admissible. 

8. Samb. .Same. Process. Non-return of. Act of 1111^ ch, 8, J 6. 
Code, 2 8608. By the 8608 { of the Code, taken with some modifica- 
tions from the act ot 1777, a penalty of $125 is recoverable by motion 
of the party aggrieved against any sheriff or other officer who fails to 
execute and make return of any process issued from any Court of 
Becord, and delivered to him twenty days before the return day. 



DECEMBER TERM, 1858. 125 

   ■■*■■  |||.I1IIPW«IM»M  ^.^-M »^^^— < 

John Hill 9. James W. Hinton et al. 

4 

This meaiis that he shall, not on! j hand in the writ, hut return that 
he has executed it, or state a sufficient reason why he has not done so. 

Sams. Same, What suffideni return. The return "not to he found 
in mj eounty," would he more perfect and proper, hut great strict- 
ness is not required when a motion is made for a penalty. Hence, 
the return "not found," although informal, is sufficient. 



FROM DAVIDSON. 



Tlie motion was disallowed by the Court, Baxtbr, 
J., presiding. The plaintiff appealed. 

J. C* Thompson, for the plaintiff. 

N. S. Brown and Michael VAuaHN, for the defend- 
ants. 

Caruthers, J., delivered the opinion of the Court. 

This was a motion against the sheriff of Davidson 
and his sureties, for a false return upon an alias sum- 
mons in debt. The motion failed. 

The process issued 10th of July, 1858, and come to 
the hands of the sheriff on the same day. The return 
was in these words: '^Executed on McNairy Newell, 
July 12, '58, Nathan Harsh not found in my countyj 
September 8, 1858. K. BRANCH, D. Sheriff." 

The entry of the motion at the return term, is as 
follows : 

"The plaintiff by his attorney, moves the Court for 
judgment against the defendants for the sum of $125, 
penalty for the failure of the said James Hinton tc 



126 NASHVILLE : 



John Hill V. James W. Hinton et al. 



execute and make return of an alias summons hereto- 
fore, to wit, on the 10th day of July, 1858, issued 
from this Court, at the suit of said John Hill against 
John B. Newell, McNairy Newell, trustee, and Nathan 
Harsh." The original had been served on J. B. NewelL 
Two questions arise in the proceedings, upon which 
the Court is supposed to have erred: 

1. The sheriflf moved to amend his return by the 
insertion of the words, "to be." This was refused. An 
officer cannot be permitted to amend after a motion 
against him. 8 Hum. 396. But he may before the mo- 
tion, even after notice. 6 Hum., 96-9. The reason of 
the distinction is, that the commencement of the suit is 
the motion, and not the notice that it will be made. 
It is the 11% pendens^ that precludes the right of the 
officer to amend. 

2. The plaintiff proposed to prove that Nathan 
Harsh was a citizen of the county, and had a known 
place of business, where he is generally to be found. 
The Court rejected the evidence. This is alleged to be 
error. This ruling of the court was right. In Fussell 
T. Oreenjield, 1 Sneed, 443, which was a motion for a 
"false return'* upon an execution, it was held that no 
extrinsic evidence could be introduced, to show the falsity 
of the return, but that in this summary proceeding, 
nothing but the return itself could be looked to to de- 
termine its falsity. If the facts stated in the return 
were false, and injury resulted, that must be redressed 
by an action on the case. The remedy by motion can 
succeed only where the falsity appears on its face, as 
where he returns that the property levied upon could not 
be sold for want of time, and it appears in the return 



DECEMBER TERM, 1858. 127 



John Hill V. James W. Hinton et al. 



there iras ample time. To these decidions we have uni-^ 
formly adhered. But they were motions for ** false and 
insufficient returns " of executions, under the act of 
1835, adopted in the Code at section 3594. 

The motion is founded upon section 3603 of the Code, 
taken, with modifications, from the act of 1777, ch. 8, 
sec. 5 ; C. & N. 664. That section gives a penalty of 
$125, to be recovered by motion of the party ag- 
grieved, against any sheriff or other officer who '^ fails 
to execute and make return of any process issued from 
any Court of Recordj and delivered to him twenty days 
before the return day.*' The same reason would apply to 
confine the inquiry to the face of the return, and ex- 
clude extrinsic evidence, as in cases of executions. The 
motion is not for a failure to return in fact, but for a 
false or insufficient return. In order to give any pre- 
tence for the motion, the word "return" must be con- 
strued to mean, that he shall not only hand in the 
writ to the clerk at the proper time, and show by his 
endorsement upon it, his action has been such as the J 

law commands. That is, he must show that he has done 
what the law requires of him, to-wit, that he has exe- 
cuted the writ, or state a good reason why he has not. 
This is perhaps the correct construction. This confines 
the enquiry to the return as endorsed upon the sum- 
mons. Is that good in law? The only defect alleged 
is, that he states that the defendant, Harsh, "is not 
found in my ' county," when it should be, " not to be 
found," &c. That would be more perfect, because it 
might be true that he is not found, when in fact he 
might be, or is " to be " found by proper exertions. But 
such strictness will not be required where a motion is 




128 NASHVILLE : 



Jeremiah Cleveland v. Edwin Martin et al. 



made for a penalty. In Peck's R., 196, it was held 
that such a defect, though an infonnality would not 
authorize a judgment by motion on the return of a 
/J. fa. 

The judgment disallowing the motion, will be afSrmed. 



Jeremiah Cleveland v. Edwin Martin et al 

1. Chaitckry Pbactick. Bill of review. New matter. A paper writ- 
ing was mislaid. In the pleadings in the original cause, it was con- 
ceded by the parties to be a title bond, and the decree pronounced upon 
that hypothesis. The instrument was found after the decree passed. 
A bill of review was filed for new matter, charging that said paper 
writing was found, and was a deed of bargain and sale. Held, that 
the instrument was not a deed, and a bill of review will not lie. 

2. Salis of Bkal Estate. Lien. Assignment If the vendor of real 
estat6 retain the legal title as security for the purchase money, it has 
the effect of a mortgage for that purpose, and the assignment of the 
note given tor the purchase money carries with it the benefit of the 
Becurity. 

8. Sams. Same. Assignment Ixy parol. A debt or eAo«e in action may 
be assigned, for a valuable consideration, by parol, and whatever 
passes the debt will carry with it the security for its payment. Ko 
deed or writing is necessary. A sale and delivery of the note is suffi- 
cient. 

4* Same. Same. Extension of time. New noie. If the assignee of the 
note, given for the purchase money, and the creditor and his securi- 
ties, extend the time of payment upon a new note, executed with an 
express stipulation that the lien or security should continue as before, 
the security for the note will remain as effective as if the time had not 
been extended and the new note given. 



FROM FRANKLIN. 



The bill of review was dismissed by Chancellor Rid* 



DECEMBER TERM, 1858. 129 



Jeremiah Cleveland v. Edwin Kartin et al. 



LY, at the November Term, 1868. The complainant, in 
said bill, appealed. 

CoLTAR, for the complainant. 
Estill, for the defendants. 

Wright, J., delivered the opinion of the Court. 

The decree of the Chancellor in this cause is af- 
firmed. 

There was no appeal from the decree upon the orig- 
inal bill, and that branch of the case is not before us, 
in any form, unless it be through the bill of review. 

It is alone as to the bill of review that we are to 
consider the case; and we think the Chancellor acted 
rery properly in dismissing it. 

It was not filed for any errors of law apparent in 
the decree, but solely upon the ground of new matter, 
which, it was said, had arisen since the decree was 
made. 

The new matter, as set forth in the bill of review, 

was this: that in the pleadings in the original cause it 

was conceded by all the parties, that the writing exe* 

cuted by Estell k Garner, to Curry McGreer, for the 

one-half of the two lots in Winchester, was only a 

tide bandj and not a deed of convyanee ; and that they 

retained the legal title, as a security for the payment 

of the purchase money due from him to them; and that 

this writing had been left with Mr. Francis and lost, 

or mislaid, so that the same was not filed, or used on 

the trial of the original cause ; and that the Chancel- 

9 



130 NASHVILLE : 



Jeremiah Clevelaiid v. Edwin Martin et al. 



lor's decree had been pronounced upon the supposition 
that these statements in the pleadings, to-wit, that the 
writing was only a bond for titley were true. Whereas, 
as the bill of review alleged, since the trial and decree, 
Mr. Francis, in the examination of some old papers, 
had found the writing, and it turned out not to be a 
title bond, but a deed of bargain and sale, wherein no 
lien in behalf of Estell & Garner had been retained. 

The writing is copied into the bill of review, and 
filed in the cause, and it still plainly appears that it is 
not a deed of conveyance, but only the memorandum of 
a contract between Estell & Garner, and McGreer, by 
which they became bound to make him a title to their 
moiety of the lot, the legal title being still retained in 
them. 

That this is the legal efiect of the instrument is not 
denied in argument here, and cannot be. Cames v. 
Apperson ^ Go., 2 Sneed, 562. 

This being so the bill of review, of necessity, failed, 
because, in point of fact, it contained no new matter; 
the pleadings and decree in the original cause embra* 
cing every fact contained within the bill of review. 

But if this bill had been framed with a view to 
reach errors of law supposed to exist in the decree, or 
if the original cause were here by appeal, we think the 
equity of the case is against complainant, Cleveland. It 
is conceded in argument here by his counsel, that Estell 
k Garner retained the legal title to the half of the 
lots sold McGreer, as security for the purchase money, 
the legal effect of which was the same as a mortgage 
for that purpose. Qraham v. McCampbell, Meigs' Hep., 
52. In fact, in the very note executed to Estell for 



DECEMBER TERM, 1858. 131 

Jeremiah Cleveland v. Edwin Martin et al. 

his moiety of the purchase money, by McGreer, and 
Edwin Martin and John Fitzpatrick as his securities, it 
is expressly stipulated that the property is to remain a 
security for the debt. It is also conceded that the as- 
signment, ot the note by Estell to Johnson, carried with 
it the benefit of the security ; but it is denied that 
Daniel Champion, though he obtained the note by assign- 
ment from Logan, had the benefit of the security, be- 
cause Johnson did not, in writing, assign the note to 
Logan, but only by sale and delivery without assignment. 
There is nothing in this objection. A debt or chose in 
action may be assigned, for a valuable consideration, by 
parol, and whatever passes the debt will carry with it 
the security for its payment. No deed or writing is 
necessary. A sale and delivery of the note is enough. 
Craft V. Webfier^ 4 Rawle, 242; Frescott v. ffully 17 
Johns. Rep., 285 ; 5 N. H. Rep., 420 ; Hop%on v. Hoge 
^ Letter J 8 Yer., 158 ; Graham v. McCampbell^ Meigs* 
Rep., 57. 

Nor do we think the position can be maintained, that 
the security, or mortgage, so to speak, upon the lot, was 
lost because Daniel Champion took a new note for the 
debt from the same parties, and extended the time of 
payment; because it is palpable, from the proof and the 
note, that the security upon the lots was continued and 
retained for the payment of the substituted note. At 
that time Cleveland had no interest in the property, and 
Estell & Gamer were but trustees holding the lots as 
a security for the debt due Champion, and they were not 
necessary parties to the extension of the debt. Meigs* 
Rep., 57. 

W. Champion, the creditor, and McQreer, the owner 



182 NASHVILLE : 



Jeremiah Cleveland v. Edwin Martin ei al. 



of the lots in equity, with Martin and Fitzpatrick his 
sureties in the debt, chose to extend it upon a new note, 
as a mode or means of payment, with an expres8 stip- 
ulation that the security, or mortgage, should continue 
as before. Why should this not be done? We confess 
we are unable to see why it may not. If so, the secu- 
rity for the debt remained as effective as before, and 
Cleveland could not afterwards purchase the property of 
McGreer so as to defeat or impair this security, any 
more than if the extension had never been made. If we 
establish the existence and continuance of the security 
as between Champion and McGreer and his sureties, this 
settles the case against Cleveland. 

He is not an innocent purchaser, because if it were 
shown (it is not) that he had paid McGreer for the 
property, still he has no legal title, that remaining in 
Estell & Gamer. And his answer fails, in other respects, 
to entitle him to the benefit of this defence. 10 Ten, 
335; 1 Meigs' Dig., 244, 245. 

It is argued that the substitution of the new note 
extinguished the debt, and the security, if it existed at 
all, was by contract^ and not by laWj and to be of any 
avail against Cleveland, should have been declared in 
writing and registered. But we have seen that the orig^ 
inal security was never changed or given up, but ex- 
pressly retained and continued upon the lots as before. 

The case of Crorden v. Johnson^ 5 Hum. 489, 
to which we ha^e been referred, differs from this case 
in this: that the proof showed the note had been paid 
by the bill^ and there wom^ in that case^ no express con- 
tinuation of the debt and the security for its payment. 

It follows that Martin, the surety, having paid the 



DECEMBER TERM, 1858. 133 



Thomas Philips v. Henry & Sbackleford. 



debt, was entitled to the benefit of the security upon 
the lots for his indemnity. Uzzell v. Macky 4 Hum. 
319. 

Affirm the decree. 



Thomas PniLiPS v, Henry k Schacklbford. 

£yii>knce. Partner not a competent witness. One of the copartners of a 
firm, in a contest between third persons and the firm, is not a compe* 
tent witness to prove the existence of the partnership, or that the debt 
sued for was created for or on account of the firm. 



FROM MONTGOMERY. 



Verdict and judgment for the plaintiffs, at the Sep- 
tember Term, 1858, Pepper, J., presiding. The defendant 
appealed. 

House and Hornberger, for the plaintiff in error, 
cited Foiter v. Hall^ 4 Hum., 346; Vamant v. Kay^ 2 
Hum., 106; Rarvey v. Sweasy^ 4 Hum., 449; Yancy v. 
Marriotty 1 Sneed, 28; Price v. Kearney ^ 5 Hill, 82; 
Marquand v. TTcJJ, 16 John. R. 89. 



-, for the defendants in error. 



Wright, J., delivered the opinion of the Court. 

This was an action of assumpsit, commenced by the 
plaintiffs below, against Thomas Philips, as one of the 



184 NASHVILLE : 



Thomas Philips v. Henry & Schackleford. 



members of the firm of H. H. Hollister & Co., to re- 
cover the amount of an account for professional services 
alleged to have been rendered the firm. 

A recovery was had and Philips has appealed in 
error to this Court. 

This firm, as was alleged, was composed of H. H. 
Hollister, Horace Hollister, W. E. Ellis, and the plaintifi" 
in error, Thomas Philips, and Richard Jordan. 

On the trial in the Circuit Court the question ap- 
pears to have been, whether the plaintiff in error was a 
member of this firm, so as to be chargeable with this 
debt, and whether, in fact, the debt was created on 
account of the firm? 

In this state of the case the plaintiffs introduced 
and read the deposition of H. H. Hollister, a member 
of the firm, who proved that in May or June, in the 
year 1853, he employed the plaintiffs to attend to the 
suit for the firm of H. H. Hollister & Co., at a fee 
of $200, and that they rendered the services for the 
firm. 

To the reading of this deposition the defendant ob- 
jected; but the Circuit Judge overruled the objection, 
and permitted it to go to the jury. 

In this we think he erred. We understand the set- 
tled rule of law to be, that a co-partner of the defendant 
is not a competent witness for the plaintiff, either to 
prove the partnership or that the debt was contracted 
for, or on account of the firm. Here H. H. Hollister was, 
undoubtedly, liable for the whole of this debt, and was 
directly interested in fixing it upon the plaintiff in error, 
as one of the firm of H. H. Hollister & Co., so as to 



DECEMBER TERM, 1858. 135 



The State v. George Bonner, 



force him to share with him its payment. And such 
was the direct effect of his evidence. 

It is true there is other evidence in this record tend- 
ing to show that the plaintiff in error was a member 
of this firm, and that this debt, (which is admitted to 
be just as against H. H. HoUister,) was chargeable to 
the co-partnership. But still this does not obviate the 
difficulty, since it is impossible for us to say what in- 
fluence the evidence of H. H. Hollister had with the 
jury in finding against the defendant. 2 Hum., 106 ; 4 
Hum., 354-855; 4 Hum., 449; 1 Sneed, 28. 

Reverse the judgment, and remand the cause. 



"o^-iiS/ 



The State v. Georoe Bonner. 



Cbiminal Law. Slaves. Purchase of liquor from. Aider atid abetter. 
The Bale of liquor by a slave is a criminal offence, and a white man 
who tempts him to commit the offence, by purchasing liquor from 
him, is an aider and abettor, and as much guilty, as a principal of- 
fender, of a misdemeanor, as if the seller had been of his own color. 



FROM WARREN. 



Upon motion, the presentment was quashed by Judge 
Marchbanks, at the October Term, 1858. The Attorney 
General appealed. 

Sneed, Attorney General, for the State. 
J. L« Spurlock, for the defendant. 



186 NASHVILLE : 



The State v, George Bonner. 



McKiNNBT, J. delivered the opinion of the Court, 

At the June Term, 1858, of the Circuit Court of 
Warren, a presentment was made against the defendant 
by the Grand Jury, in which it is charged, in substance, 
that, on the 25th day of March, 1858, being the Sab* 
bath day, in said county, a certain negro slave, the 
property of John H. Hopkins, did retail spirituous 
liquors to him, the said George Bonner; he, the said 
George Bonner, then and there aiding, promoting, and 
encouraging the said retailing, as aforesaid. 

The Court, on motion of the defendant, quashed the 
presentment, and the Attorney General appealed. 

Passing by objections to the form of the presentment, 
we proceed to inquire whether it substantially charges 
the defendant with any act indictable by our law. This 
is a new question, but we think it presents no serious 
difficulty. 

If the acts charged had taken place since the new 
Code went into operation, the question would admit of 
no discussion. By section 261? of the Code, slaves are 
absolutely forbidden to sell any spirituous liquors; and 
by sections 2672, 2678, it is made an indictable offence 
to purchase or receive from a slave any article, unless 
it be of the slaveys own manufacture, without a written 
permit from the master, specifying the time when and 
the article to be sold. 

To purchase or receive spirituous liquors from a slave 
would, clearly, fall within the prohibition and penalty of 
the latter section. And it may be observed, that, as 
slaves are positively disqualified to sell spirituous liquors 
by the section first referred to, a "permit" from the 



DECEMBER TERM, 1858. 187 



The State v. €teorge Bonner. 



master to do so would be a nullity^ and, of course, no 
defence to the person who may have purchased or re- 
ceived the liquor from the slave. 

It remains to be seen whether the acts imputed to 
the defendant amount to an indictable offence, upon 
general principles of the common law, prior to the adop- 
tion of the Code. 

In the case of a white man, we suppose it cannot 
be seriously controverted, that, upon general principles, 
the purchaser of Bpirituous liquors, in violation of the 
statutes passed to suppress tippling, is as much guilty 
of a violation of the law, and as much amenable to 
criminal prosecution and punishment, as the seller. They 
are, in all respects, particeps criminU; they are alike 
wilful violators of the law. The express prohibition to 
seU, upon every just principle of construction, must be 
considered as implying a prohibition to purchase. The 
purchaser — ^whether we regard his intent, or the effect 
and consequences of his act — is no less guilty, no less 
within the mischief intended to be suppressed, than the 
seller. It matters not that the former is not placed 
under the obligation of a bond or oath. This takes 
nothing from the force of the argument. He still 
stands guilty of wilfully participating in, and aiding and 
encouraging the commission of a criminal offence. Does 
not this, upon the soundest principles of criminal law, 
constitute him a principal in the offence? We think it 
does. And, perhaps, it would scarcely be going too far 
to say, that he ought to be regarded as less excusable 
than the seller. He has not the poor pretext of the 
latter, that the forbidden traffic is, in part, his means 
of procuring a living. 



188 NASHVILLE 



The State v. Geoi^e Bonner. 



If this conclusion be correct, as between citizen and 
citizen, is it not equally an indictable offence for a white 
man to purchase liquor from a slave? We think it is, 
with the qualification that it is, perhaps, a more aggra-^ 
vated, and, if possible, more mischievous wrong. 

By the act of 1829, ch. 74, § 1, slaves are forbidden 
to sell spirituous liquors, (under the penalty of a limited 
number of stripes to be inflicted by order of a justice,) 
unless by the permission of the master. But the act 
of 1835, ch. 57, § 2, contains a prohibition upon the 
master to permit a slave to sell spirituous liquors. By 
these provisions, taken together, the sale of liquor by a 
slave is a criminal offence, absolutely prohibited, under 
corporal punishment. If so, is not a white man, who 
tempts the slave to commit an offence, and aids, abets and 
encourages him in doing so, as much guilty of a misde- 
meanor as a principal offender, as if the seller had been of 
his own color ? The complexion and social condition of 
the slave does not enter into the gist of the offence ; nor 
is it of any consequence, as we shall see presently, that; 
the mode of prosecution and kind of punishment, in 
the case of the white jnan, are different from that pre- 
scribed for the slave. 

It is well settled that a white man may be either 
an accessory, or principal, in a homicide committed by 
a slave, in like manner as if the crime had been com- 
mitted by a white man. State v. MeCarUy 11 Hum., 494. 
In that case it is said the offence is the same, though 
the punishment is different. That case proceeds upon 
the doctrine, that the Courts, to prevent a failure of 
justice and to secure the punishment of offenders, will 
so modify the rules and principles of the common law, 



DECEMBER TERM, 1858. 189 



The State «. George Bonner. 



as to adapt them to new offences created by statute, or 
to new cases as they arise. Hence, if a new felony be 
c&*eated, or if an act which, at common law, was only a 
misdemeanor, be made a felony, the rules and principles 
of the common law, as to principals and accessories, and 
in other necessary respects, will be applied to the new 
felonies, though the statute creating the felonies be silent 
on the subject. So, in McCarn's case it was held, that, 
although by the penal Code of 1829, principals and 
accessories are to be punished in like manner : yet, as 
under our law, white men and slaves are punished dif- 
ferently; a white man, convicted as accessory to a 
crime committed by a slave, must be punished in the 
same manner as if the principal had been a white man; 
and the slave, convicted as principal, must be punished 
as prescribed by the statute in such cases. 

If the doctrine of McCarn's case be sound in respect 
to felonies, surely it is no less applicable to cases of 
misdemeanors. And if so, the principle of the case, in 
our opinion, warrants the conclusion, that the defendant 
in the case before us is liable to be prosecuted and 
punished in the same manner as if the offence charged 
upon the slave had been committed by a white man. 

It follows that the judgment must be reversed, and 
the defendant be held to answer to the presentment. 



140 NASHVILLE : 



J. fi. Leetch v. The State. 



J. B. Leetch v. The State. 



1. Criminal Law. Act of 1881, eh, 108, {{ 1 and 2. Slaves. Unlato- 
fvl assemblage of. Under the act of 1881, ch. 108, H 1 and 2, if the 
number of slaves assembled is unustuU, or if the assemblage is at a 
suspicious tinie and place, the offence is complete. It is not necessary 
to show that the time and place are suspicious, and the number unu- 
sual. If either one is made out the offence is complete. But, in 
either case, it must be shown that the owner of the land on which 
the slaves meet, had knowledge of, and permitted Uie assemblage, with- 
out the express authority of their owners. 

2. Same. Evidence. Onus of proof. Code, { 2691. It devolves upon 
the defendant to show, by positive or circumstantial evidence, that the 
owners of the slaves gave permission to them to assemble. But this 
provision is not carried into the Code, and the question is not, now, of 
much importance. 



FROM MAURY. 



The plabtiff in error was convicted at the May Term, 
1858, before Judge Marchbanks, and appealed, in error* 
to this Court. 

J. M. Harrell, for the plaintiiT in error. 

Sneed, Attorney General, for the State. 

Caruthers, J., delivered the opinion of the Court. 

This is an indictment under the act of 1831, ch. 103, 
sees. 1 and 2, and is the first which has come before 
us. The description of the ofience is thus given in the 
act: 



DECEMBER TERM, 1858. 141 



J. B. Lcetch V. The State. 



'^Sec. 1. All assemblages of slaves in unusual num- 
bers, or at suspicious times and places, not expressly 
authorized by the owners, shall be held and considered 
an unlawful assemblage. 

^^Sec. 2. Any person who shall knowingly permit 
any such assembly to be hdld on his or her land or 
premises, * * * shall be liable to presentment or 
indictment, end, on conviction, fined at the discretion of 
the Court." 

The first section defines what is meant by an unlaw- 
ful assemblage of slaves, that is, where the number is 
^^ unusual," or the time and place ^'suspicious," making 
two distinct cases. If there be nothing suspicious as to 
the time and place, still, if the number is unusual, the 
offence exists; and even if the number is not unusual, 
yet if the time and place are suspicious, the offence is 
complete. But in either case, the owner of the land on 
which they meet, is not criminated unless he '* knowingly 
permit$ " it. Both his knowledge and permission must 
be established, to constitute the offence, in addition to 
the fact of the assemblage. But if all this be made 
out by the State, the statute provides an effectual de- 
fence; that is, that the slaves were ^expressly author- 
ized by their owners " to be there. A question is made 
as to the onus of proof upon the point of the owner's 
authority to their slaves to be at such assembly. We 
think this is matter ot defence, and it devolves on the 
defendant to make it out by positive or circumstantial 
evidence, as held by His Honor, the Circuit Judge, in 
his charge. But this is not now of much importance, 
as this provision is dropped in the 2691st section of the 
Code, in the description of the same offence. 



142 NASHVILLE : 



J. B Leetch v. The State. 



The argument is unsound, that to constitute the of- 
fence the slaves, when assembled, must do some other 
unlawful act. That is not made an element by the 
Legislature, and we are not authorized to add it. It is 
a police regulation, founded on sound policy. It cannot, 
however, be understood to apply to such cases as are 
put in the argument; such as congregations of slaves 
on occasions of funerals, preaching, and other ordi- 
nary lawful purposes, by permission of their owners, 
express or implied. The present case does not fall under 
any of those exceptions. It was an assembly of an un- 
usual number, some forty or fifty, for social enjoyment, 
and without the permission or even the knowledge of 
the owners, from anything that appears. It is difficult 
to see to what sort of case the act would apply if not 
to this. The act does not make it necessary that there 
should be any appearance of suspicion to constitute the 
offence where the number is "unusual." If the "time 
and place " are calculated to excite suspicion, the num- 
ber would not be material. What number would be re- 
garded as "unusual,'* is not capable of any exact defi- 
nition, but must be left for construction in reference to 
the facts of the particular case. 

The defendant was convicted and fined fifteen dollars. 
We affirm the judgment. 



DECEMBER TERM, 1848. 148 



George W. Lincoln v. William Parcell ct al. 



Gborgb W. Lincoln v. William Purcbll et al. 

1. Lien. By contract^ not in the nature of a mortgage or vendor's lien. 
An express lien, created by contract and reserved on the face of the 
conveyance, is not, in all respects, equivalent to a mortgage, because 
the legal estate passes, by the conveyance, and vests in the purchaser. 
Neither is it, in all respects, in the nature of the vendor's lien. The 
latter, when the legal estate has been conveyed, exists only by impli- 
cation of law, and is the mere creature of a court of equity. A lien 
created by contract, and reserved on the face of the conveyance, is re- 
garded as a spedfie lieHy forming an original substantive charge upon 
the estate thus conveyed, and as affecting all persons who may, subse- 
quently, come into possession of the estate with notice, either actual or 
constructive, of its existence. 

2. Same. Same. Statute of limitationa. This being the nature and ef- 
fect of the Ifen, the presumption of law is that the purchaser of the 
land upon which the lien is reserved, holds under and consistent with 
the lien until the contrary is shown by him. And the statute of lim- 
itations will not run until he disclaims the lien, and assumes to hold 
adversely to it, with the knowledge of the party having said lien. 

Z, Same. Same. Same. Adverse possession. Act of 1819, eh. 28, { 2. 
The debt of a mortgagee, or lien of a vendor, or other lien for the 
payment of money, is not barred, under the act of 1819, ch. 28, { 2, by 
the mere lapse of seven years before filing a bill to enforce them. To 
create the bar, under that section, the possession must be, in legal con- 
templation, adverse. 

4. Same. Same. Same. Does not run until the m&ney is due. A cause 
of action must exist for the full period of seven years before suit 
brc>ught in order to create the bar, and a note payable in stonework to 
be done at any time called for, cannot be sued on without a previous 
request to do the work, and the statute of limitations will not begin 
to run until such request is made. 

5. Same. Release by trustee. If a party hold, as a naked trustee, a lien, 
for another, a release, by him, of such lien to a person having a 
knowledge of the character of his claim, is a nullity. 

6. Same. Same. Liability of the trustee. Estoppel. If a naked trus- 
tee execute a release, under seal, of a lien for the payment of money, 
in which he acknowledges the reception of the money, he will be treated 
as holding the money in trust, and rendered liable for the same. And 



144 NASHVILLE : 



QeoTge W. Lincoln v. William Purcell et al. 



his acknowledgement would be an estoppel upon him, both at law and 
in equity, to deny the fact of having received the money. 

7. Chancbry flkadino. Demurrer, Presumption. It is only in cases 
when it clearly appears from the face of the bill that the equity of 
complainant is barred, that the bill will be dismissed on demurrer, 
and every reasonable presumption is to be made in favor of, rather 
than against, the bill. 



FROM DAVIDSON. 



A demurrer to the bill was sustained by Chancellor 
Friebson, at the May Term, 1858, and the bill dis- 
missed. The complainant appealed. 

Houston, for the complainant. 

The demurrer was sustained and the bill dismissed 
upon the authority of the case of Ray and others v. 
Goodman^ 1 Sneed, 586^ in which it is held that ^^ a 
possession of seven years by the vendee of land, claim- 
ing by virtue of his purchase, as evidenced by the bond 
for title under which he holds, gives him a right of 
possession that cannot be disturbed by the vendor by a 
bill to enforce his lien for unpaid purchase money, which 
has been due above seven years." Such lien is held to 
be barred by the 2d section of the act of 1819. 

1st. Without questioning the correctness of this de- 
cision, I insist that it does not apply to this case. That 
case recognizes the principle that the vendor and vendee 
are trustees for each other, but holds that such trusts, 
in cases of ordinary title bonds, are not express but 
implied, and that express trusts may, certainly, be raised 
in the contract of the parties, but in the usual bonds, 
simply for title, the trusts are only implied by law* 



DECEMBER TERM, 185S. 145 

G«orge W. Lincoln v. William Purcell et al. 

Now, in the case in hand, the parties were not satis- 
fied with such lien or such trust as might be implied 
by law, but by express contract, they provide that the 
notes shall remain a lien upon the lot until paid, and 
when paid, Purcell is to hold the lot for himself, his 
heirs, &c. And I submit whether, as between the par- 
ties to the first deed, the statute of limitations ever 
operated at all. And I submit whether the trans- 
action was not, in its efiect, a mortgage, and if so, 
whether the statute would run in favor of Purcell, Nor- 
throp, or Cheatham, under the facts appearing in the 
cause. 

2d. Again : I do not understand the case of Jtai/ 
V. Grocdman to go further than to decide that a sale, 
the execution of a title bond, and the possession of the 
vendee for seven years, claiming the land under his pur- 
chase, forms the bar of the statute. In such case, 
however, if the^ vendee were, all the time, acknowledging 
the existence and validity of the lien, the statute would 
not form the bar. For this efiect the possession must 
be adverse, and this recognition of the lien removes 
the presumption of adverse holding which is raised by 
the sale, the title bond, and possession under it. There 
can be no bar of the statute in any case without an 
adverse holding. This is distinctly stated in the case of 
Qraham v. Nelson^ 5. Hum., 610, which case is recog- 
nized in the case of Marr v. Chester^ 1 Swan, 416. 
The Court was construing the 2d section of the act of 
1819, and its language is, that ''It cannot be supposed 
that the bar was intended to apply to cases where there 
was no adverse claim to the party entitled to the land. 

If the party against whom suit is brought has been 

10 



146 NASHVILLE : 



George W. Lincoln r. William Purcell et cU. 



holding in subservience to the complainant's right, and 
his possession has been consistent therewith, it would be 
an absurd proposition to assume that such possession was 
a bar to the action." See, also, the case of Nolen v. 
Larmon ^ Fenwicky cited in the case of Marr v. Ches- 
ter, Now, apply these principles to the facts stated in 
the bill, and it seems to me that the Chancellor, un- 
questionably, erred in sustaining the demurrer, for it is 
distinctly charged that both Northrop and Cheatham's 
possession was in subservience to complainant's rights, 
and that the possession of each was consistent therewith. 

8d. Again : The deed to Purcell was made on the 
Ist of December, 1849 ; the deed of the sheriff to Nor- 
throp, on the 19th of January, 1850, and his deed to 
Cheatham was made on the 14th of January, 1851 ; and 
this bill was filed on the 11th of January, 1858, which 
was less than seven years from the time Cheatham ac- 
quired the title. Cheatham, then, did not himself hold 
the lot for seven years before this bill was filed, and 
unless he can connect his possession with that of Nor- 
throp, complainant's right is not barred. This he cannot 
do, because Northrop shows on the face of his deed to 
Cheatham, that he did not hold adversely to the lien 
for the unpaid purchase money. 

4th. I insist further, that the contract between Nor- 
throp and Cheatham, as shown in the deed to the latter, 
raised, by contract, a trust in favor of complainant, 
against which the statute of limitations has not run, and 
would not, even if Cheatham had held it seven years. 
The language of the Court in the case of Marr ▼• 
Chester J is, ''If a man receive a conveyance of a legal 
title of a tract of land, in which conveyance there is a 



DECEMBER TERM, 1858. 147 

Geovge W. Lincoln v. William Parcell et al. 

declaration that the bargainee is to be entitled to only 
three-fourths of the land, and that one-fonrth is to be 
laid off for a third party, who has an eqnitable right 
to it; this is an implied undertaking, by contract, to 
lay off that one-fourth for the cestui que trusty and to 
hold the possession, not for himself entirely, but for 
himself and his co-tenant in equity." 



EwiKG k Cooper, for the defendants. 

McKiNNBY, J., delivered the opinion of the Court. 

The complainant's bill was dismissed on demurrer. 
The bill seeks to subject a lot in the town of Nash- 
ville, to the satisfaction of a balance of unpaid pur- 
chase money, by force of an express lien reserved upon 
the face of the conveyance. 

It appears, from the allegations of the bill, that, on 
the 1st day of December, 1848, the defendant, Kirk- 
man, sold and conveyed the lot in question to the de- 
fendant, Purcell, at the price of $1500. At the time 
of said sale, Kirkman, the vendor, was indebted to the 
complainant; and it was mutually agreed between Kirk- 
man, complainant, and PurcoU, that the latter, in part 
discharge of the purchase money of* the lot, due to 
Kirkman, should 'assume and become responsible for the 
debt due from Kirkman to complainant. And, in pur- 
suance of this agreement, Purcell executed two notes, one 
for $525,00, and the other for $825,00, << payable in 
stone-work, to be done at any time called for, after the 



148 NASHVILLE : 



Oeorge W. Lincoln v. William Purcell et al. 



1st of July, 1849." By this arrangement, and the pay- 
ment of $650,00 in hand, by Purcell to Kirkman, the 
parchase money of said lot was fully paid to Kirkman, 
and the indebtedness of the latter to complainant was 
extinguished. The deed of conyeyance from Kirkmah to 
Purcell, which was executed at the time of the contract, 
recites the execution of said two notes by Purcell to 
complainant, in part discharge of the purchase money of 
the lot; and expressly provides that the sums of money 
specified in said notes, ^* shall be and remain a lien 
upon said lot or parcel of land, until said sums shall 
have been fully satisfied, discharged and paid ; and the 
said William Purcell, upon the payment of said notes, 
is to have and to hold the aforesaid lot or parcel of 
land," &c. This deed appears not to have been proved 
or registered until January, 1852, which was after the 
sale and conveyance to Cheatham, hereafter to be no- 
ticed. 

It further appears from the bill, that, on the 19th of 
January, 1850, said lot was sold at execution sale, as 
the property of said Purcell, and was purchased by one 
Northrop. The sheriflF's deed to Northrop, in describing 
the lot, refers to it as " being the same conveyed by 
John Kirkman to the said William Purcell, by deed, 
(unregistered,) on the 1st day of December, 1848." On 
the 14th of January, 1841, Northrop sold and conveyed 
. said lot to F. R. Cheatham, and in his deed of convey- 
ance he covenants, amongst other things^ that said lot ^' is 
unincumbered, with the exception of the balance of the 
purchase money due from one William Purcell, on the pur- 
chase of said lot of ground by said Purcell from John 
Kirkman, on the 1st day of December, 1848." And in the 



DECEMBER TERM, 1858. 149 

George W. Lincoln v. William PurccU ei cU. 

cavenant of warranty, he warrants ^^ against the lawful 
claim* of all persons^ except snch as may claim by virtue 
of the lien of said John Kirkman on said lot of ground, 
for the unpaid purchase money due from the said Wil- 
liam Furcell on his purchase aforesaid from Kirkman." 

The bill exhibits a copy of an instrument executed 
by John Kirkman to Cheatham, on the 17th of August, 
1852, in which the former acknowledges the payment to 
him, by Cheatham, of the balance of the purchase money 
due on the two before mentioned notes, executed by 
Purcell to complainant, and in consideration thereof, he 
relinquishes to Cheathnm all his interest in said lot. 

The bill charges that, in fact, Cheatham paid nothing 
to Kirkman for said release, and denies that Kirkman 
had anj interest in the notes, or in the lien reserved to 
secure their payment, or that he had any power to re- 
lease or discharge said lien. It is further charged, in 
substance, that both Northrop and Cheatham purchased 
with full knowledge of the fact that a portion of the 
purchase money of the lot remained due to complainant, 
and, also, with knowledge of the existence of the lien, 
to secure the payment thereof: and that they, respect- 
ively, held said lot in subservience to, and consistently 
with the right of the complainant, and not adversely 
thereto; and that in the summer of 1857, Cheatham had 
promised to pay complainant the remainder of such pur- 
chase money. 

It is further alleged that the note for $325,00 still 
remains unpaid ; and complainant states that ^' he de- 
manded payment of said note long ainccy and payment 
was refused." 

The bill seeks to subject said lot to the satisfaction 



150 NASHVILLE : 



George W. Lincoln v. William Purcell et al. 



of the amount of said note, by enforcing the lien, 
which, it is alleged, was reserved for the sole benefit 
of the complainant. Purcell, Cheatham and Kirkman, 
are made defendants to the bill. The demurrer to the 
bill is filed, on behalf alone, of Cheatham. 

Taking the allegations of the bill to bo true, for the 
present, we think the Chancellor erred in allowing the 
demurrer. 

The pretended release of Kirkman might be left out 
of yiew, as entitled to no consideration in the deter- 
mination of the main question intended to be raised by 
the demurrer. Upon the facts charged in the bill, the 
release is a mere nullity. Kirkman held the lien as a 
naked trustee for the complainant. No lien could, possi- 
bly, have existed in his own favor, for the simple reason 
that, by the arrangement stated in the bill, his claim 
for the purchase money of the lot was fully satisfied 
and extinguished at the time of the sale. And Cheat- 
ham, as is substantially charged, having knowledge of 
the facts, cannot avail himself of the release for any 
purpose. How it might be, if Cheatham occupied the 
footing of a bona fide purchaser without notice, need 
not be stated. It is clear, however, that Kirkman is a 
proper party defendant, either for the purpose of having 
the release annulled, or for the purpose of having a 
decree against him for the amount of the unpaid pur- 
chase money, which, by his deed, he acknowledges the 
reception of from Cheatham. For, although he had no 
right to receive the money, yet, having done so, he must 
be treated as holding it in trust for complainant. And 
his acknowledgement being under seal would be an 
estoppel upon him, at law, to deny the fact of having 



DECEMBER TEBM, 1858. 151 

George W. Lincoln v. William Purcell et al, 

received the money ; and he will he alike precluded in 
equity, for he cannot, in the latter forum, be heard to 
allege that he made the release without consideration, 
with a view to cut off the lien ; for this would have 
been, on his part, a palpable fraud upon the rights of 
the complainant, which he will not be heard to insist 
upon, in exoneration of his liability. 

But the Chancellor allowed the demurrer, as is stated 
in the argument, on the ground that the complainant's 
equity was barred by the statute of limitations. This con- 
clusion is erroneous, we think, for several reasons. 

That it was competent to the parties, by mutual 
agreement, to create the lien declared in the deed from 
Kirkman to Purcell, for the benefit of the complainant, 
admits of no doubt upon general principles of law. But 
the exact nature and legal effect of a lien thus created, 
seems not to be well defined, in any of the books to 
which we have had access. It certainly is not, in all 
respects, equivalent to a mortgage; because the legal 
estate passes by the conveyance, and vests in the pur- 
chaser, notwithstanding the lien reserved in the deed. 

And yet it must be regarded as, in some respects, 
different from, and as possessing greater efficacy than the 
vendor's lien, properly so called. The latter, where the 
legal estate has been conveyed to the vendee, is the 
mere creature of a court of equity. It exists only by 
implication of law; and is in the nature of a trust 
only, and not a specific lien upon the land conveyed, 
until a bill has been filed to enforce it. 10 Hum., 371. 

But an express lien, created by contract and reserved 
on the face of the conveyance, though not a mortgage, 
must at least be regarded as a specific lien, forming an 



152 NASHVILLE : 



George W. Lincoln i;. William Purcell ei al. 



original substantive charge upon the estate thus conveyed; 
and as affecting all persons who may subsequently come 
into possession of the estate with notice, either actual 
or constructive, of its existence. This must necessarily 
be so; for even the implied lien of the vendor exists 
not only against the purchaser and his heirs, but, also, 
against all persons claiming under him, with notice of 
it, though they be purchasers for a valuable considera- 
tion. But this implied lien does not exist against a bona 
fide purchaser, without notice; neither will it be allowed 
to prevail against a creditor who may have acquired a 
judgment, or execution lien upon the property, before a 
bill has been filed by the vendor to enforce his lien. 
10 Hum., 871, 376. But not so of the lien created by 
contract, as in the present case. If the conveyance re- 
serving the lien has been duly registered, such lien will 
be operative against creditors, bona fide purchasers, and 
all other persons, without regard to actual notice. 

It is true, in the present case, that the deed from 
Kirkman to Purcell, reserving the lien, was not regis- 
tered until after the sale by Northrop to Cheatham. 
But this is of no consequence, in this particular case, 
because the deed from Northrop to Cheatham expressly 
recognizes the existence of the lien declared in Kirk- 
man's deed. 

If this view of the nature and effect of the lien in 
question be correct, it certainly does not create between 
the parties a relation similar to that of a mortgage, as 
regards the application of the statute of limitations. The 
relation of the purchaser is more analogous to that of a 
trustee, by express contract, who may disclaim the trust; 
and after such disclaimer, and a knowledge thereof 



DECEMBER TERM, 1858. 153 



George W. Lincoln v, William Purcell ei al. 



brought home to the cestui que trusty maj claim and hold 

adversely to him. This is putting the case in the most 

favorable point of view for the defendant, Cheatham. 

But this will not avail him; as the presumption of 

law is, that he is holding under and consistently with 

the trust, until the contrary is a£Srmatively shown by 

him. Upon this presumption alone the complainant might 

have safely rested, in answer to the demurrer, without 

the aid of the affirmative allegation in the bill, that the 

defendant had held, and was holding, in subordination 

to his lien. 

It is altogether a mistaken conclusion, that, under the 

second section of the act of 1819, the complainant's 
equity is barred by the mere lapse of seven years, be- 
fore filing his bill, irrespective of the character of de- 
fendant's possession. To create a bar, under that sec- 
tion, the possession must be, in legal contemplation, ad> 
verse. Such has been the uniform course of decision 
since the case of Dyche v. Gass^ S Yer., 897. And the 
case relied on, {Ray v. Goodman^ 1 Sneed, 586,) when 
carefully examined, will be found to be in accordance with 
previous adjudications upon the statute. ' 

But, again : The case of Bay v. Ooodman settles, 
that the purchase money must have been dtie seven 
years, before the filing of the bill, to enforce the pay- 
ment thereof, by a sale of the land. 

In other words, a cause of action must have existed 
for the full period of seven years before suit brought, 
which might have been asserted at any time within that 
period, in order to create a bar. This cannot be pred- 
icated of the case under consideration, from the face of 
the bill. 



154 NASHVILLE : 



G^rge W. Lincoln v. William Purcell et oL 



The notes were "payable in stone-work, to be done 
at any time called far^ after the 1st of July, 1849." 
We take it to be too clear to require either authority 
or argument, that no action could have been maintained 
on these notes, without a previous request to do the 
work stipulated to be done. Until such demand, or re- 
quest, made and refused, there was no default, or breach 
of contract, on the part of the maker of the notes; 
and, consequently, no right, or cause of action, on the 
part of the complainant. The principle, that in contracts 
for the payment of money, on demand, the bringing suit 
is all the demand required, has no application to a case 
like the present. 

From the statement in the bill, that payment was 
demanded " long amre," and refused, it cannot be in- 
ferred that it was demanded more than seven years be- 
fore suit. This would be to reverse the rule, that, upon 
a demurrer, every reasonable presumption is to be made 
in favor of, rather than against the bill. It is only in 
cases where it clearly appears, from the face of the 
bill, that the complainant's equity is barred, that the 
bill will be dismissed upon demurrer, for that cause. 

Decree reversed, and cause remanded. 



DECEMBER TERM, 1858. 155 



John B. Bates v. S. K. Whiteon. 



John B. Bates v. S. K. Whitson. 

1. Principal and Sitrett. Agreement to become principaL Ckm- 
Meraium, If an obligation is incurred by two, to raise money to 
discharge the debt of one, the other, who is in no way bound for the 
original debt, cannot, by agreement, become the principal, and the 
one whose debt is paid become the surety, so as to make him first 
liable on the obligation thus assumed, unless there is a legal consider- 
ation to sustain the promise made to become the principal. 

2. Same. Same. Same, Que in judgment, A bill of exchange was 
drawn by two partners. Money was retained by one partner to 
discharge the bill of exchange, but he appropriated $700 of the fund 
to his individual debts, and the bill, to that extent, remained unpaid. 
After the death of this partner, one of his administrators, together 
with the other partner, executed a note, in bank, in payment of the 
$700. This note was endorsed by the endorsers on the bill of ex- 
change. The partner who was joint maker of the note paid it after 
judgment, at the request of the administrator, who promised to refund 
the amount paid. The estate of the deceased partner proved to be 
insolvent, and his administrator, who had jointly executed the note, 
refused to reibnd the money out of his individual means. The partner 
who paid the debt moved for judgment, as surety, against him. 
Held, that it does not appear that it was understood by the parties 
that the administrator was to be individually liable for the debt, and 
become the principal in the note ; and, if it did so appear, there is no 
consideration to support the promise, and it cannot be enforced. 



FROM BEDFORD. 



This cause was tried at the August Term^ 1858, 
Baxter, J., presiding, by interchange with Judge David- 
son. Verdict and judgment for the defendant. The 
plaintiff appealed. 

W. H. WiSENER, for the plaintiff. 

Ed. Cooper, for the defendant. 



166 NASHVILLE : 



John B. Bates o. S. K. Wbitson. 



Caruthbrs, J., delivered the opinion of the Court. 

The plaintiff moved the Circuit Court of Bedford for 
judgment against the defendant, upon the ground that he 
was his surety in, and had paid off a judgment on the 
following note: 

"?774. RowESViLLE, Tenn., August 9, 1854. 

"Four months after date, we, or either of us, prom- 
ise to pay Jas. W. Johnson, or order, at the Branch of 
the Bank of Tennessee, at Shelbyville, seven hundred 
and seventy-four dollars, for value received. Witness our 
hands and seals, date above. 

S. K. WHITSON, [SEAL.] 
J. B. BATES, [seal.] 

Endorsed by Johnson, Knight, Stamps, and Elliot. 

The bank sued the makers and endorsers, and Bates 
paid the judgment. 

The Court submitted the question of suretyship to 
the jury, and they found the issue against Bates. The 
errors assigned are upon the charge of the Court. 
These will be better understood by a brief statement of 
the facts. 

In the fall of 1858, Trigg and Bates were partners 
in buying and driving hogs to the South. Part of the 
funds employed by them in this business was raised by 
a bill of exchange upon Mobile for $3,500, drawn by 
them, and endorsed by the same men, perhaps, who 
endorsed this note, and discounted by the bank An 
amount sufficient to pay off this bill was retained out 
of the proceeds of the drove, and placed in the hands 
of Trigg, for that purpose. He paid all but the above 



DECEMBER TERM, 1858. 157 



I _^ — 

I 

John B. Bates v. S. K. Whitson. 



balance, which he applied to his owd debts, and left 
that unpaid. He gave assurances to the bank that he 
would soon discharge it, but died before it was done; 
and Whitson became his administrator. He applied to 
the bank for a further extension of the time, and the same 
was given by -discounting the above note. The estate 
of Trigg was then thought to be good, but it turned 
out otherwise in the end ; and the struggle now is upon 
whom the loss shall fall. This depends upon the issue 
submitted to the jury. 

There is no controversy but the proceeds of this 
note were applied to the extinguishment of the balance 
due upon the bill of exchange of Trigg and Bates, lint 
the question is raised upon the ground that Whitson, 
though not bound, when he became administrator of 
Trigg, in view of the fact that his intestate should 
have paid the debt, and considering the estate entirely 
solvent, made it his own debt, and procured Bates to 
become joint maker of the note in the character of 
surety, as between themselves, in order to obtain the 
same endorsers, and to satisfy the demand of the bank 
to have the same men on the note that they had on 
the bill of exchange; or, as appears by the proof of 
Johnson, one of the endorsers, that when the note was 
presented to him first to endorse, Whitson alone was 
maker, and he refused to endorse it unless Bates, who 
was bound before him on the bill as one of the drawers, 
or some other good man, would become joint maker of 
the note, after which it was returned with Bates' name, 
and he endorsed it. This application, first and last, was 
not by Whitson, but a man named Jett, who was joint 
administrator of Trigg. 



158 NASHVILLE : 



John B. Bates o. S. K. Whitson. 



After the note fell dne, and was protested and sned 
npon, Whitson told Bates he did not intend for him to 
pay the note, or any part of it; that he should never 
pay ^^one dime of it^" as he had become bound on it 
at his (Whitson's) request, and for his accommodation, 
to get the endorsers upon it. It appears further, that 
after the judgment and execution, upon application to 
Whitson for the money, he said he did not have the 
money of his own, or of the estate, but told the officer 
to request Bates to '^ advance the money for him, and 
he should be repaid out of or in the first note of the 
witness and Bates that fell due for the land and mill 
of Wm. H. Trigg, the intestate^ which had been sold to 
pay debts." The witness advanced the money at the re- 
quest of Bates, who has since refunded to him. 

Upon these facts the Court charged, in effect, that 
the question of suretyship depended not upon the form, 
but the substance of the transaction. That if the money 
to be raised on the note was intended to be, and was 
applied to the payment of a debt for which Bates and 
not Whiston was bound, he would not be the surety of 
Whiston; and the fact that Bates had placed the money 
in the hands of Trigg, to pay the bill, would make no 
difference, as that would only be a question between the 
partners in their settlement. He further charged that 
if the debt was Bates' for which this money was raised, 
the understanding of the parties as to the relation they 
would occupy on the note, would not change the ques* 
tion; but that, from the fact that the note was made to 
pay a debt for which Bates was bound, and Whitson not, 
the law would fix the character of their relation, and 
Bates would be the principal, and not surety. 



DECEMBER TERM, 1858. 159 

John B. Bates v. S. K. Whitson. 

The Court was requested to charge that the parties 
might by contract change this relation, even if the money 
was used in discharge of Bates' debt; but this was re* 
fused. Whether the Court considered the proposition 
unsound in law, or not applicable to the facts of the 
case, and, therefore, a mere abstraction, does not appear. 
If the facts do not raise the question propounded, it 
was right to refuse to so instruct the jury even if such 
was the law. Indeed it would hltve been improper, 
though not error, to have done so. But it was, perhaps, 
declined upon the other ground, that the Court consid- 
ered it not to be the law. Although there is no ex. 
press contract or agreement to that effect, yet there is, 
perhaps, proof enough tendbg to establish that as the 
understanding of the parties to make it a proper ques- 
tion for the jury. So the questions made by the in- 
structions asked is properly before us for decision. We 
are not aware of any authority on the exact point, but 
we think it presents no serious difficulty upon principle. 
It would seem to be a great absurdity to hold, that in 
an obligation incurred by two to raise money to dis- 
charge the debt of one, the other, who was in no way 
bound for the original debt, should become the principal, 
and the other, whose debt was paid, or for whose use 
and benefit the money was approptiated, should be surety. 
In such a case there would be no consideration for the 
agreement. There might be cases where such a contract 
would be enforced, but the facts would have to be very 
different from these. 

Here was no consideration whatever. Whitson was in 
no way bound, in his individual capacity, for the debt to 
be paid or renewed by this note. All that he said and 



160 NASHVILLE : 



William B. Wood v. John H. Thomas et al. 



did in relation to the pLjment of it, was upon the idea 
that the estate of Trigg was good, and in that ev^ent he 
knew it was just that it should be paid by him, as 
representative of Trigg, who had used the firm money 
intrusted to him for that purpose, and he honestly in- 
tended that should be done, and Bates saved. But there 
is nothing to show that he ever intended to pay it out 
of his own means, without a certain prospect of reim- 
bursement out of the assets. As soon as he ascertained 
that the estate would, prove insolvent, he declined to 
take the loss upon himself for the exoneration of one 
of the original debtors. But then, if such had been his 
purpose, and he declined to execute a contract to that 
effect, our decision goes to the extent that he could not 
be compelled to do so without some consideration to 
sustain the promise. 

This does not, of course, affect the question of the 
liability of the estate of Trigg, in the hands of Whitson, 
to Bates, for this debt, in the settlement of the part- 
nership. 

Let the judgment be affirmed. 



William B. Wood v. John H. ThoMAS et al 

1. Attachment. Verbal sale of real estate. Eqtdf able interest, Ored' 
itor and debtor. A creditor oan ho on no higher ground than his 
dehtor, in attaching equitahlc interests of the latter. And if the 
debtor has done any act, or entered into any agreement which would 
preclude him from asserting an equity that he once had, his creditor 
would, likewise, be precluded from so doing. 



r 



DECEMBER TERM, 1858. 161 

William B. Wood o. John IL Thomas et al, 

2. Sams. Same, Case in judgment A. and B. entered into an agree- 
ment for the sale and purchase of real estate. The contract was in 
parol. A. paid B. $200, and executed his notes for the remainder of 
the purchase money, B. verbally agreeing to make him a title to the 
land when the purchase money should be paid. Subsequent to this 
agreement, the trade between A. and B. was cancelled, and the land 
sold to C, who refunded to A the $200 paid by him, and executed his 
notes to B., in the place of the notes previously given by A., which 
notes were delivered up to A. After this latter agreement a creditor 
of A/s attached his interest in the lard and the fund. It was held 
that A. had parted with his equitable interest both in the land and 
fund, and it could not be attached at the instance of his creditors. 



FROM WILLIAMSON. 



Complainant's bill was dismissed by Chancellor Fri- 
BRSON, at the April Term^ 1858. He appealed. 

R. F. Hill, for the complainant. 

E. C. Cook, for the defendants. 

Wright, J., delivered the opinion of the Court. 

On the 15th of July, 1856, the complainant, Wm. B. 
Wood, who is a creditor of the defendant, John H. 
Thomas, filed his bill m the Chancery Court at Franklin 
against said Thomas and Thomas J. Gray. 

The said Thomas, in the fall of the year 1855, had 
Terbally purchased of said Gray a house and lot, in the 
town of Psytonsville, in Williamson county, for which he 
was to pay (400, to wit, 9^00 on the first of January, 
1856, flOO on the first of August, 1856, and the re- 
maining (100 on the first of January, 1857; and for 
11 



162 NASHVILLE : 



William B. Wood t?. John H. Thomas et al. 



which Thomas executed his notes to Gray, who never 
gave Thomas any deed, title bond, or writing of any 
kind, as to the house and lot. 

A part of this purchase money, namely, the $200 
due in January, 1856, had been paid by Thomas to 
Gray, and the object of the bill was to attach the in- 
terest of said Thomas in the house and lot, and in the 
$200 so paid Gray — the bill being framed in the alter- 
native, so as to reach either the house and lot or the 
fund, and have the same applied in satisfaction of com- 
plainant's debt. 

In May, 1856, prior to the filing of complainant's 
bill, Thomas had, with the assent of Gray, verbally 
sold his interest in the house and lot to Isaac Secrest 
for $450 — of which sum he paid Thomas in cash, $250; 
and, as to the balance, jie executed to Gray his two 
notes for 9100 each, due the first of August, 1856, and 
first of January, 1857. These notes were accepted by 
Gray in lieu of Thomas' notes, which were surrendered 
to him by Gray, who agreed to make the title to 
Secrest instead of Thomas, upon receiving payment of 
the two notes. 

All this took place prior to the filing of complain- 
ant's bill; and Gray, from thenceforward, held himself 
ready to make the title to Secrest as soon as he paid 
him, and had no claim on Thomas, who was let entirely 
out of the contract, and ceased all claim to the house 
and lot after the sale to Secrest. 

The Chancellor decreed that Thomas had no attach- 
able interest, either in the house and lot or in the fund, 
and that Gray, having waived the want of a writing, 



DECEMBER TERM, 1858. 163 

William B. Wood v. John H. Thomas ei al. 

and sabmitting to make Secrest a title, sbould do so 
upon receiving of him the residue of the purchase 
money. 

With this decree Secrest, Gray, and Thomas are 
satisfied, and do not appeal. An appeal is only taken by 
complainant, Wood. 

We think the Chancellor's decree was right, and 
affirm it. 

The complainant can be on no higher ground than 
John H. Thomas, his debtor. The latter had no claim 
or debt whatever against Gray, and could, in no aspect 
of the case, have any, for he had received back, of 
Secrest, all he had advanced. Neither had he any interest 
in this house and lot. How could he, if disposed, file 
a bill and assert any equity or claim to this property 
after what had t&ken place between him and Secrest? 
And complainant can be no better ofi*. But he asserts 
no claim, and denies expressly he has any interest. 

Even if Gray desired, (but he does not,) to abandon 
the contract with Secrest, and enforce the specified ex- 
ecution of the contract with Thomas, yet he could not 
do so against the will of Thomas. This could only be 
done by the voluntary consent of both parties. But here 
neither consents ; but both aver that Secrest is entitled 
to the property, and express a wish that it be decreed 
him under the contract with him. And he also desires 
that this be done, and files a bill for that purpose. 

Bow then can complainant interpose to prevent this? 
That he cannot is conclusively settled in the case of 
Sneed et al. v. Bradley et al.j 4t Sneed, 801. See« also, 
Thacker v. Chambers et al. 5 Hum., 818. 

We affirm the decision, with costs. 



-r 



164 NASHVILLE : 



Moore Smiley v. James 0. Gambill, Ex'r, &c. 



Moore Smiley v. James C. Gambill, Ex'r, &o. 



1 Will. Mevocation of. Mistake, Fraud, If the maker of a will 
burns a paper, which she thinks is her will, but bj mistake or the 
jroMd of others, burns a different paper, with the intention of revok 
ing said will by its destruction, and honestly believed that she had done 
it, and continued in that belief, withoat any subsequent recognition, 
or even knowledge of its existence, it would amount to a revocation 
of the will. 

2. Same. Same. Evidence. Bevocatlon is a question of intention, 
and the acts, conduct and declarations of the maker of the will, are 
admissible for the purpose of ascertaining whether it was revoked. 
Be vocation may be established as other facts, by positive or circum- 
stantial evidence. 

3. Same. Same. Revocation a question of Law, While it is the prov- 
ince of the jury to determine the facts, what amounts to a revocation 
is a question of law. 



FROM BEDFORD. 



The issue was found in favor of the will, at the 
August Term, 1858, Davidson, J., presiding. The de- 
fendants appealed. 

WiSBNBR & Caldwell, for the plaintiff in error. 

Buchanan, Eeeble & Cooper, for the defendant in 
error. 

Caruthers, J., delivered the opinion of the Court. 

This was a contest upon the will of Margaret Stew- 



DECEMBER TERM, 1858. 165 

Moore Smiley v. James C. Gambill, Ex'r, &c. 

art. The issue was decided in favor of the will, and 
an appeal in error, by the contestant. 

The error assigned is upon the charge of the Court 
on the question of revocation. He said : 

^^ That if the alleged testatrix burnt a paper which 
she believed was her will, but in that was mistaken, it 
would be no revocation. Parol declarations that she had 
no will, amount in law to no revocation. Evidence that 
the alleged testatrix had, subsequent to the execution of 
the alleged will, made conveyances of a portion of the 
same property named in the will, was admitted only on 
the question of capacity, and if her capacity is not 
attacked, such evidence is irrelevant, and ought not to 
be considered." 

The charge is applicable to the facts proved, and 
the question is, whether it is sound law. There is no 
doubt but that she made and executed the paper as her 
will, but there is just as little, that she thought she had 
destroyed it, and died in that belief. This is proved by 
her uniform declarations, and by her acts in dispos- 
ing of some of the same property by deeds, and in appli- 
cations made to friends to write another will for her, on 
the ground that she had destroyed her first. She be- 
came dissatisfied with the principal legatee, and deter- 
mined to change her purpose. She disclosed to various 
persons, that she went to the drawer, where she caused 
her will to be deposited, took it out, and burnt it up 
— that she knew it was her will by a certain red rib- 
bon that she had tied around it. There can be no 
doubt but that she believed the paper she burned was 
her will, and, perhaps, just as little, that some one had 
removed the paper without her knowledge, and thus de- 



166 NASHVILLE : 



Moore Smiley v. James C. Gambill, Ex'r, &c. 

ceived her. It seems afterwards to have been in posses- 
sion of Gambiirs son-in-law. She failed by mistake to 
accomplish her object, and it is more than likely that 
this mistake was caused by the fraud of others. She 
then lived at the house of her son-in-law, Gambill, the 
executor and main legatee whose interest it was to pre- 
vent its destruction. 

Most of the States have statutes similar to that of 
the English statute of frauds on this subject, prescrib- 
ing the acts that w^ill revoke a. will. " Burning, can- 
celling, tearing or obliterating," are the words generally 
used. There are many nice distinctions drawn in the 
books, in the construction and application of these words, 
and some of the cases on those statutes seem to sus- 
tain the charge. But we have no statute of the kind. 
The only reference to the subject of revocation in our 
legislation, is that in the 14th section of the act of 
1784, ch. 22, which provides that "no written will shall 
be altered or revoked by a subsequent nuncupative will, 
except the same be in the lifetime of the testator, re- 
duced to writing,'' &c. But this is confined to that 
particular and single mode of revoking, and does not 
prohibit any other mode known to the law, independent 
of any statute regulation on the subject. It will not be 
controverted by any one, that where the maker of a will 
destroys it in any manner, or causes it to be done, with 
the intention that it shall no longer exist, that it is re- 
voked, and can never be set up. This power over it 
results from its very nature. It is ambulatory, and has 
no vitality or binding force until the death of the mak- 
er — it only speaks from the death. It is a dead letter 
and binds no one until that time. It is the death of the 



DECEMBER TERM, 1858. 167 

Moore Smiley v. James 0. Gambill, £x'r, «&c. 

testator which gives life to the testament. A simple de. 
termination of the mind, never executed, no matter how 
often declared or strongly made, however, cannot have 
the effect to avoid the writing, but this must be accom- 
panied by some act designed to carry out the purpose 
of revocation. 

All this is plain enough, but the question recurs, is 
the object accomplished in law, where, by mistake^ or 
the fraudulent interposition of others, the thing intended 
to be done, was not, but the paper, contrary to the 
maker*s intentions and belief, was still preserved ? If 
this were so it would be an anomaly. 

In Ford v. Ford^ 7 Hum., 104, the Court say, that 
"if a testator, being of sound mind, told the witness to 
burn the will, and it was not done, although he sup- 
posed it to have been burned, it is a revocation," or 
rather, that the contrary, as held by the Circuit Judge, 
was not law. They say, in effect, if a man is deceived 
by the burning of another paper, which he supposed 
was his will, it would be sufficient to revoke. The Court 
admits, very correctly, in the same case, that a mere 
intention to revoke, however strong, without some act, 
will not be sufficient. The cases cited in 1 Jarman on 
Wills, 116 to 118, are in accordance, in principle, with 
the case of Ford. A Pennsylvania case, reported in 1 
Smith, 41, cited by Jarman in a note, p. 117, holds, 
"that a will made many years before, and believed by 
the testator to be destroyed, but detained by one of 
the devisees to prevent its being cancelled or altered, 
was thereby avoided. This is correct, with the qualifica- 
tion that some act was done, or attempted tc be done 
upon it, with the intention to revoke. Revocation is a 



168 NASHVILLE : 



Moore Smiley v. James G. Ghimbill, £x*r, &c. 

question of intention, and evidence is admissible to show 
that intention, bj any act done, or believed to have been 
done. The act done, or aimed to be done, as well as 
the purpose of the mind for which it was done, are 
matters of fact for the jury. Burns v. Burnsy 4 Serg. 
& Rawle. And these may be established as other 
facts, by one credible witness, or convincing circumstan- 
ces. But what facts amount to a revocation, is, of 
course, a question of law. 

In this case, if the jury believed, as a matter of 
fact, that Mrs. Stewart burnt a paper which she thought 
was her will, although it was not, with the intention of 
revoking by its destruction, and honestly believed that 
she had done it, and continued in that belief, without 
any subsequent recognition, or even knowledge of its 
existence, the paper propounded would not be her will. 
As testimony bearing on this question, the excluded facts 
in relation to the sale of her property afterwards, were 
admissible as circumstances. Her declarations alone might 
not be sufficient, but they were competent, and it would 
be for the jury to determine whether they, together with 
other facts proved, made out the fact of burning, or 
intention to do so, by the act done. 

For these errors in the charge of the Court, the 
judgment must be reversed, and a new trial granted. 



DECEMBER TERM, 1858. 169 



Jacob Stipe v. Thomas Stipe. 



Jacob Stipb v. Thomas Stipe. 

1. Salk ot Rial Estatk. Jurisdiction, Covenant of warranty. 
Fraud. If there be do fraud in the Bale of real estate, the purchaser, 
on failure of title, must rely, alone, on his covenants of warranty. 
And if there be no covenants of warranty, he has no remedy, either 
in law or equity, for his money. 

2. Samx. Same, Eviction, Breach of warranty. The purchaser of 
real estate has no remedy on his covenants of warranty, cither in a 
Court of Law or Equity, until there is a breach of the warranty ; and 
there is no breach until eviction. But if there be a breach of the cov- 
enant, the remedy at law is plain and adequate, and a Court of Equity 
has no jurisdiction. 

8. Same. Eviction. Queaiion reserved. Is the payment of a judgment 
which is an incumbrance upon the land, by a purchaser with cov- 
enants of warranty, an eviction pro tanto f 



FROM WHITB. 



The bill was dismissed upon demurrer by Chancellor 
Van Dyke, and the complainant appealed. 

Samuel Terny, for the complainant. 

CoLMS, for the defendant, cited, M. k Y. R., 376- 
382 ; 10 Yer., 179-186 ; 3 Hum., 309-313 ; 1 Yer., 450- 
452; Story's Eq., §§ 298-306; 6 Hum., 455-458; 4 
Yer., 270-297. 

Wright, J., delivered the opinion of the Court. 

The bill, in this case, cannot be maintained, and the 
Chancellor acted very properly in sustaining the demurrer. 



170 NASHVILLE : 



Jacob Stipe v. Thomas Stipe. 



We think it very probable, from the facts shown in 
the bill, that in the purchase of the land by the com- 
plainant of defendant they were particeps criminis in a 
scheme of fraud to defeat the collection of the judg- 
ment afterwards had in the suit then pending against 
the defendant for slander. If so, the complainant can 
have no relief in a Court of Equity. 

But if this be not so, the bill makes no case of 
fraud by the defendant upon the complainant, nor is 
any rescission of the contract sought. On the contrary, 
complainant, or his vendee, is in possession of the land, 
and seeks to maintain it. The settled rule is, that if 
there be no fraud, the purchaser of real estate, on failure 
of title, must rely, alone, on his covenants of warranty. 
And if there be none, he has no remedy, either in law 
or equity, for his money. Maney v. Porter^ 3 Hum., 347. 

The bill here alleges a covenant of warranty, but 
avers want of eviction. If this be so, there is no breach 
of the covenant, and how can complainant have relief 
in a Court of Equity any more than a COurt of law? 
Neither the one Court nor the other can give any 
remedy until there is a breach of the warranty. 

But if there be a breach of the covenant at all, 
the remedy of complainant in a Court of Law is plain 
and adequate, and equity has no jurisdiction. 

If complainant's purchase were free of any taint of 
fraud, and he could, outside of the covenant of warranty, 
maintain the position, (as was done in Winchester v. 
Beardin, 10 Hum., 247,) that in paying the judgment 
in slander, he had discharged a debt of the defendant — 
an incumbrance upon the land — and had put himself in 
an attitude to have a recovery against the defendant for 



DECEilBER TERM, 1858. 171 

John Colcough v. The Nashville and Northwestern Railroad Company. 

money paid to his use, still his remedy, in a Court of 
Law, is ample. 

But we think, upon an examination of the author- 
ities, it will be found that the payiaent by the com- 
plainant of the judgment in slander was an eviction pro 
ianto. 2 Green. Ev., § 244. Such is our recollection 
of the authorities, Rawle on Covenants for title, pp. 
227-240. 

But we do not now mean to decide this question. 

It is palpable, that in whatever light this case may 
be viewed, a Court of Equity is not the proper forum. 

The decree of the Chancellor, dismissing the bill, is 
affirmed. 



John Colcough v. The Nashville and Northwestern 

Railroad Company. 

1. BxiLitOAD Company. Statutory remedy exclusive. The statutory 
remedy given to land proprietors, for land taken for the construction 
of railways, i.«, in general, cxclufiivc of all other remedies, and not 
merely cumulative. 

2. Bams. Same. Damagea. The remedy prescribed in the charter of 
the Northwestern Railroad Company, embraces not only just compen- 
sation for the land taken, but likewise all such incidental loss, or 
damage, as must necesj-arily or reasonably result from the appropria- 
tion of the land and construction of the road in the manner author- 
ized by the charter. 

8. Sams. Same. Same. Confined to the land taken. This statutory 
remedy is confined to the land taken, and the damages incident 
thereto. It does not extend to, and embrace damage or injuri(>8 to 
adjoining land, not authorized by the charter to be taken ; nor to 
damages resulting from carelessness, negligence, or wilful trespasses 
in the execution of the work. 



172 NASHVILLE : 



John Colcough v. The Kashville and Northwestern Bailroad Company. 

4. Sams. Same. Remedy not limited to the owner of the fee. This 
statutory remedy is not limited to the owner of the fee. A life 
interest, or a term of years may be carved out of the fee ; and in 
such case the tenant for life, or lessee, as well as the remainderman, 
or lessor, is within the spirit and meaning of the charter, and they are 
entitled to recover compensation for the damage or injury by them 
respectively sustained. 

6. Same. Practice, Proceeding may be joint or several. The persons 
vested with the several interests which constitute the entire estate, 
may join in a proceeding under the statute to obtain compensation; 
or, as they have several interests, may proceed separately. In either 
mode of proceeding, the compensation for the entire damage must be 
apportioned according to the injury to their respective interests. 



FROM DAVIDSON. 



This cause was tried upon demurrer, at the May 
Term, 1858, Baxter, J., presiding. The demurrer being 
sustained, the plaintiff appealed. 

Woods & Mbrritt, for the plaintiff. 

The plaintiff's right to compensation is admitted by 
the argument. The question is how it is to be enforced. 
If the act of incorporation had provided for the assess- 
ment of damages, it is admitted, that under our decisions, 
the mode pointed out by the State must be followed to 
the exclusion of the common law remedy. But it is 
insisted for the plaintiff that no mode is pointed out by 
the statute for anything but the freehold; (see Charter, 
Acts 1851-52, pp. 88, 89,) and, therefore, either the 
act is unconstitutional, as failing to provide for the pay- 
ment of the "just compensation," as the New York de- 
cisions and many in the Kew England States decide, or 



DEGE&IBEB TERM, 1858. 173 

John Colcough v. The Nashville and Northwestern Bailroad CompAny. 

else the party is to be permitted to look to the gen« 
eral principles of the common law for the enforcement 
of an admitted right. K this be so, assmnpsit is the 
only remedy, as the company in the appropriation of 
this land was in the lawful exercise of a right dele- 
gated to it by the Legislature, and was in no sense a 
trespasser or wrong-doer. Woodfolk v. Nashville and 
Chattanooga Railroad Company^ 2 Swan. The origin 
and history of the action of . assumpsit show that this 
case is embraced in its principles, and is a fit one for 
their application. 



EwiNa &; Cooper, for the defendant. 

The remedy given to persons for damages arising 
from the seizure of their land by the railroad is very 
broad, and, as explained in the case of Woodfolk y. 
Nashville and Chattanooga Railroad Company^ reported 
in 2 Swan, — , embraces the value of the land seized 
by the road, as well as the incidental damages to the 
remaining portion. The Legislature evidently, by the 
provisions of that act, intended to give a full remedy 
to all owners of land who were injured by a proper 
and legitimate construction of the roadj and, at the same 
time, give a right of way in fee simple to the railroad 
company when the damages were paid. If lessees for 
years are not embraced, then the railroad company could 
not legitimately seize land thus held — they can get no 
title to such land by any proceeding under their charter, 
and their whole enterprize would be balked. We insist, 





NASHVILLE : 

JohiO^oirouA V. The NashTille and Northwestern Kail road Company. 

oapit^contrary, that the words "owners of land" used 
in the statute, means all owners, whether in fee, for life 
or for years. That in a proceeding for damages by a 
seizure of land, all of these owners must, or at least 
may be included in the petition for relief, and separate 
damages given to each by the jury in their report, or 
they may be apportioned by the Court on final hearing. 

Such is the construction given to similar statutes in 
other States of the Union. , 5 Metcalf Rep. — ; 22 Penn. 
Rep., 29; 15 Pick., 198; 2 Sandford, 506. 

The Courts of other States of the Union have also 
decided that damages similar to those charged in this 
declaration are included under the word " owners " given 
in our statutes. Redfield on Railways, p. 180 and notes. 
It is hardly necessary to afBrm, that if this plaintiff 
has any remedy given him under the charter of incor- 
poration to defendants, that this remedy is necessarily 
exclusive, and that no other could be pursued. 



McKiNNEY, J., delivered the opinion of the Court. 

This was an action of assumpsit. The case comes up 
upon demurrer to the declaration, which was sustained 
in the Court below. 

The gravamen of the action, as alleged in the dec- 
laration, and in argument, is: That the plaintiff was 
seized, as owner for an unexpired term of years, of a 
lot of ground in West Nashville, which wa« taken by 
the defendant, under the authority of its charter, as part 
of the road bed; and that the defendant, in the proper 



DECEMBER TERM, 1858. 




John Colcoiigh v. The Niishville and Northwestern Railr 

construction of the road, and in the exercise 
proper and rightful power and authority under the char- 
ter, pulled down and removed the fences and part of 
the dwelling-house which had been erected and were 
standing upon said lot; and likewise used and destroyed 
tiie com, potatoes, &c., growing thereon. 

The supposed foundation of the action is an implied 
promise on the part of the company to make reasonable 
compensation to the plaintiff for the injuries sustained 
by him. 

The current of authority seems to be, that the stat- 
utory remedy given to land proprietors, for land taken 
for the construction of railways, is to be regarded, in 
general, as exclusive of all other remedies, and not 
merely cumulative. Redfield on Railways, p. 173. 

The remedy prescribed in the particular charter under 
consideration, embraces not only '^just compensation" 
for the land taken, but likewise for all such incidental 

» 

loss or damage as must necessarily or reasonably result 
from the appropriation of the land and construction of 
the road in the manner authorized by the charter. 
These are all proper elements of the damage, to the 
owner, in taking the land, to be considered of in the 
assessment of damages; and as to these, in general, the 
assessment will be conclusive. 

This statutory remedy does not, however, contemplate 
or extend to damage or injuries to adjoining land, not 
authorized by the charter, nor to damages resulting from 
carelessness, negligence, or wilful trespasses in the execu- 
tion of tho work. 

The plaintiff's counsel does not controvert the general 
principle that the statutory remedy is exclusive. But 



176 NASHVILLE : 



John Colcough v. The Nashville and Northwestern Railroad Company. 



the argument assumes that this remedy is confined to the 

owner of the fee; and that, consequently, the owner of a 
less interest, as a tenant for life or years, is without 
remedy, unless permitted to resort to a common law 
action adapted to the nature of the case; and that as 
the injuries complained of by the plaintifi" were occa- 
sioned by the defendant, not by any wrongful act, but in 
the exercise of a lawful right conferred by its charter, 
the law in such case will imply a promise to compen- 
sate the plaintifil 

The fallacy of the argument lies in the assumption 
that the remedy given by the statute is limited to the 
absolute owner of the fee. This is not so. The word 
^^ owner,'' as used in the charter, is not to be taken in 
any such restricted sense. The ownership of the estate, 
so to speak, may be severed. A life interest, or a term 

of years, may be carved out of the fee. And in such 
case the tenant for life or lessee, as well as the re- 
mainderman or lessor, is within the spirit and meaning 
of the charter; and they are entitled to recover compen- 
sation for the damage or injury by them respectively 
sustained. 

It would seem that, in such cases, the persons vested 
with the several interests which constitute the entire 
estate, might join in a proceeding under the statute to 
obtain compensation; or, as they have several interests, 
proceed separately. In either mode of proceeding, how- 
ever, the compensation for the entire damage must be 
apportioned according to the injury to their respective 
interests. 

We are of opinion that the demurrer was properly 
sustained, and the judgment will be affirmed. 



DECEMBER TERM, 1868. 177 



W. B. Lillard, Adm'r, r. Heese W. Porter et al. 



W. B. Lillard, Adm'r, v. Rbbse W. Porter et aL 

1. Attachment. Parties, CorjHn-ation, Stockholders, Stockholders 
are distinct parties from the corporation in which they are stockhold- 
ers, and legal proceedings against them cannot reach it. Hence, if an 
attachment is sued out in a proceeding in which the stockholders are 
made parties, hut the corporation not, and is levied upon the effects of 
the corporation, no lien is acquired by virtue of the levy of said 
attachment. 

2. Same. Same. Amendment Effect of. If an attachment is sued 
out and levied upon the property of a party who is not a defendant in 
the suit, and the bill is subsequently amended, bringing such party be- 
fore the court, the lien of said attachment takes effect at the time of the 
filing of the amended bill, and does not relate back and attach at the 
time of the levy of the attachment. And if, after the levy of said 
attachment, but before the filing of the amended bill, said property is 
attached by another, in a proper proceeding against the owner, a prior 
lien is, thereby, acquired. 

3. Estoppel. By answer in Chancery. Corporation. If a party, by his 
answer in Chancery, admits the eiistence of a corporation by,a partic- 
ular name, he cannot be heard to deny, in said suit, that admission. 

4. Gektral Bank ot Tennessee. Change of name. Act of 1854, ch. 
294, i 68. The act of 1854, ch. 294, { 68, chartered the Eastern Di- 
vision Mining Company, with banking powers, and the privilege of 
changing its name and title whenever deemed necessary. Under the 
power thus conferred, the name of said corporation was changed to 
the Central Bank of Tennessee. 



FROM DAVIDSON. 



This cause was heard before Chancellor Frierson, at 

the November Term, 1857. A transcript of the record 

was filed with the Clerk of the Supreme Court, and 

a writ of error obtained by Porter. 
12 



178 NASHVILLE: 



W. B. Lillard, Adm'r, v. Beese W. Porter et al 
BosTiCE, for the complainant. 

J. S. Bribn, for Porter. 

Wright, J., delivered the opinion of the Court. 

The complainant, Lillard, as the administrator of Som- 
merhill, and the defendant, Porter, are attachment credi- 
tors of the Central Bank of Tennessee — a corporation 
created under the laws of this State. 

A fund belonging to said Bank was attached and 
placed in the hands of a receiver in the cause. 

The only question made here is as to the priority of 
these two creditors in this fund. The Chancellor decreed 
in favor of complainant, and we think properly, and 
a£Srm his decree. 

The bill of Porter was filed, and his attachment 
levied before that of Summerhill. But he failed to 
make the Bank, his only debtor, a party. His bill was 
filed, alone, against Edward Belknap, E. R. Tremain and 
Samuel L. Haven — the stockholders and owners of said 
Bank — ^treating them as his debtors. 

It was not until more than eleven months afterwards 
that, under an order of the Chancery Court, he filed 
an amended bill, making the Bank a party. 

In the meantime, and within two days after the filing 
of Porter's original bill, Summerhill had, by a bill with 
the proper parties, legally attached the Bame fund. 

We hold it to be too clear for argument, that Por- 
ter, by virtue of his attachment, acquired no lien upon 
the assets of this corporation, until he made it a party 
by the amendment to his bill. The stockholders were 



DECEMBER TERM, 1858. 179 

W. B. Lillard, Adm'r, e. Reese W. Porter ei al. 

totally distinct persons from the corporation, and legal 
proceedings against them, could, in no waj, reach it, or 
attach upon any of its assets. "*" 

It is difficult to perceive what authority an officer 
could have under a iv^rit in such a case. How could he 
lawfully seize or attach the property or assets of the 
Bank? Angell k Ames on Corporations, sections 643, 
666, 666, 667, 674, 675, 676. Fay v. Reagery Exr., 
et al, 2 Sneed, 200, 203. 

The amendment of Porter's hill cannot be made to 
relate so as to prejudice or overreach the lien previously 
acquired by Summerhill under his attachment. 2 Sneed, 
492, 203. 

It is also insisted by Porter's counsel, that there 
never was any such corporation as the Central Bank of 
Tennessee, 'and that Belknap, Tremain & Haven, merely 
took upon themselves that name under which to carry 
on their banking business — without any charter or act 
of incorporation — and that they are liable to him as 
partners; and, therefore, his attachment was properly 
sued out and levied, and entitled him to the prior lien. 

This position has nothing in it; because, in the first 
place, the bill filed by Summerhill, and Porter's answer 
thereto, and his amended bill, admit the existence of 

* The lien of an attachment takes effect from the time of the levy, and 
not from the time of its issuance. 1 S. & M., ch. 449 ; Harvey j* New v. 
Champum, 11 Hum., 669; Sneil j- McGavoek v. Allen, 1 Swan, 20S ; Wal- 
lace V. Hanleyt 4 J. J. Marsh., 622 ; Martin v. Dryden, 1 Gilm., 187. It 
would seem, therefore, that if an amended bill is filed making a new party, 
and seeking to subject his property to the payment of a debt, an attach- 
ment must be prayed for in said amended bill, in order to acquire a lien 
on the property. The issuance and levy of an attachment, on the origi- 
nal bill, upon the property of a person not a party to said bill, would cre- 
ate no lien, although the bill is, subsequently, amended, and said party 
brought before the court. 



180 NASHVILLE : 



James Brown v. The State. 



the Central Bank of Tennessee as a corporation. An- 
geir & Ames, sec. 635. 

And we also find that this corporation was created 
by the 68th section of the act of 1854, chapter 294, 
under the corporate style of the "Eastern Division Mi- 
ning Company," with banking powers, and the privilege 
of changing its name and title, whenever it deemed it 
necessary. And we have in this record, from the plead- 
ings of the parties, sufficient evidence to warrant the 
conclusion that it did change its name, and do business 
under the corporate title of the Central Bank of Ten- 
nessee. 3 Sneed, 631-2. 

Decree affirmed. 



James Brown v. The State. 



1. Criminal Law. SeUing liquor to a slave, Codt, { 4865. Bj sec- 
tion 4865 of the Code, any person who sells liquor to a slave except in 
the mcLster'a presence, or upon his written order, is guilty of a misde- 
meanor. The law contemplates a visible presence of the master; such 
a presence as, necessarily, implies a knowledge of, and assent to the 
act uf selling the liquor to the slave. If the master watch at a short 
distance, with a view to detect the party in the violation of the law, 
he is not present within the meaning of this provision of the law. 

2. Same. Same, Preseniment. Incapacity to obtain license. It is not 
necessary to aver in the presentment or indictment, that the defend- 
ant is a licensed grocery keeper, to authorize the court to pro- 
nounce judgment of incapacity to obtain a license in future. It is 
sufficient to warrant such judgment if the fact appears in evidence on 
the trial, or is otherwise satisfactorily established, before rendition of 
the judgment. 



DECEMBER TERM, 1858. 181 

James Brown v. The State. 

8. Same. Same. Code {{ 4865 and 2678. The offences defined in sees, 
4865 and 2678 of the Code, however similar, are not the same, and 
the conviction, whether upon the one section or the other, mast be 
followed by the prescribed punishment. 



FROM RUTHERFORD. 



The defendant was convicted at the January Term, 
1859, Turner, J., presiding. He appealed. 

E. A. Keeble and J. J. Palmer, for the plaintiff 
in error. 

Sneed, Attorney General, for the State. 

McKiNNEY, J., delivered the opinion of the Court. 

The plaintiff in error was convicted upon a charge 
of selling liquor to a slave, and was sentenced by the 
Court to pay a fine of (50, and to suffer four months 
imprisonment in the county jail of Rutherford, and de- 
clared incapable of ever hereafter obtaining a license 
for the sale of spirituous liquors in Rutherford county. 

Several exceptions are urged against the conviction. 
First : It is insisted that the facts proved on the trial 
do not make a case under sec. 4865 of the Code. That 
section is as follows : 

"Any person who sells, loans, or delivers to any 
slave, except for his owner or master, and then only 
in such owner or master's presence, or upon his written 
order, any liquor, &c., * * * is guilty of a misde- 
meanor; and shall be fined not less than fifty dollars, 



182 NASHVILLE : 



James Brown v. The State. 



and imprisoned in the county jail at the discretion of the 
Court." 

Brown was a grocery keeper in the town of Mur- 
freesboro', and being suspected of selling liquor to slaves, 
a plan was concerted for his detection. At an early 
hour in the morning, before daylight, one of the owners 
of the slave and another person, gave the slave an 
empty flask and a dime^ and the owner directed him to 
go to Brown's grocery and get a dime's worth of liquor. 
The slave proceeded to the back door of the grocery, 
knocked, and was admitted by Brown, and immediately 
came out with the flask full of spirituous liquor. The 
owner and person in company with him, followed the 
slave, and took a position behind a fence within three 
or four feet of the back door of the grocery ; where, 
unperceived by Brown, they could distinctly see, and did 
see him, open the door and admit the slave — ^heard him 
speak to the slave — and saw him let the slave come out 
with the flask of liquor. These facts are proved by the 
person who accompanied the owner. The defence is, that 
if this were not an unlawful conspiracy, and therefore 
inadmissible as evidence to ground a conviction upon, it 
was, at least, a sale of liquor to the slave ''in the 
master's presence," and consequently no violation of the 
law. As this point has been gravely made, we suppose 
it ought to be answered; and the answer is easy. Al- 
though, in a certain sense, the master was present, yet 
he was not present in the sense of the law. The law 
contemplates a visible presence of the master — ^such a 
presence as necessarily implies a knowledge of, and assent 
to the act of selling the liquor to the slave. It is the 
master's assent, express or implied, that furnishes the 



DECEMBER TERM, 1858. 188 

y. F. Foney and Wife v. Jesse Luton, Bx'r, et al, 

I  . I II -.. .1 m 

only legal justification of the act ; and the facts of this 
case directly negative and exclude the idea of such 
assent. 

2d. It is insisted that the Court erred in pronounc- 
ing judgment of incapacity to obtain a license in future, 
because it is not averred in' the presentment that the 
defendant was a licensed grocery keeper. This was not 
necessary. We have repeatedly held, that it is sufficien 
to warrant such judgment, if the fact appears in evi- 
dence on the trial, or is otherwise satisfactorily estab- 
lished, before rendition of the judgment. 

3d. It is argued that the Court erred in not basing 
the judgment on section 2678 of the Code — ^which pre- 
scribes a milder punishment for such an offence. The 
offences defined in the two sections referred to, however 
similar, are not the same; and, of course, the convic- 
tion, whether upon the one section or the other, must 
be followed by the prescribed punishment. 

Judgment affirmed. 



V. F. FoRSEY AND WiFB V. Jessb Luton, Ex'r, et al ' 

1. Will. Constntction, LAfe estate. If land and slaves, together with 
a sufficiency of all kind of stock for an ample support, household and 
kitchen furniture, are bequeathed by a testator to his wife for life, 
with a remainder in the land to his son — the residue of the property 
to be sold at her death or marriage, and the money to be equally 
divided between his children named in the will — the widow takes an 
estate for life in the property bequeathed, with the right to enjoy and 
use this property in specUf and the same cannot be sold by the execu- 
tors. 



184 NASHVILLE: 



V. F. Forsey and Wife v. Jesse Luton, Ex'r, et al. 

2. Same. Tenant for life. Rights of. The rents and use of the land, 
the hire and labor of the slaves, crops, young animals — the offspring 
of those originally given — new furniture, &c., and the entire fruits of 
the life estate, belong, absolutely, to the tenant for life, and make no 
part of the estate of the testator. 

8. Sake. Same. Liability of. Remaindermen. Rights of. "Li the 
tenant for life wastes, or converts any part of the estate for life to un- 
authorized uses, her estate will be liable for the amount so wasted or 
converted. But if the property were consumed in the use intended to 
bi^ made of it, or perished by time, or death of animals, or wear and 
tear of furniture and farming tools, the rights of the remaindermen 
are defeated, and they are entitled to nothing, except what remains of 
the original stock. 

4. Same, Same. Executor, Liability of. If an executor participate, 
with the tenant for life, in a breach of trust, in the sale of any part of 
the estate for life, he is jointly liable with her for the value of the 
property sold. If she received the proceeds of the sale, her estate is, 
primarily, liable to the remaindermen. 



FROM HUMPHREYS. 



This cause was heard before Chancellor Pavatt, at 
the March Term, 1858. Both parties appealed. 

BoBB & Bailt, for the complainants. 

Kimble, for the defendants. 

Wright, J., delivered the opinion of the Court. 

The contest here arises upon the construction of the 
will of William Jones, who died in the year 1844. 

The second clause of the will reads as follows: 
"That all my perishable property, such as cattle, horses, 
hogs, &c., with the exception of a suflSciency for the 
support of the family, be sold by my executors, and all 
my honest debts paid out of the proceeds by my ex- 



DECEMBER TERM, 1858. 185 

V. p. Porsey and Wife v. Jesse Luton, Ex*r, et aL 

ectttors; the balance of money arising from such sale to 
be applied to support and educate my minor children." 
And the first part of the third clause, as follows: ^'I 
give to my beloved wife, Zilpha Jones, during her life- 
time or widowhood, the tract of land whereon I now 
live, together with one hundred acres entered by me, 
lying in the southwest comer of the home tract, 
together with a sufficiency of all kinds of stock for an 
ample support, household and kitchen furniture." 

And in a subsequent part of the same clause, he 
gives to his son, William B. G. Jones, after the death 
or marriage of his wife, the tract of land devised to 
her for life or widowhood; and directs her to dispose 
of two mares— one a sorrel and the other a brown 
mare — as she might think right to settle debts due and 
shortly to fall due. 

He then gives his wife, during life or widowhood, 
his two negro women, Greasy and Alley, and her child 
Lucinda, and their increase ; and, finally, provides that all 
the property given to his wife, except the land given 
to his son William, shall, at her death or intermarriage, 
be sold, and the money equally divided between his 
children named in the will. 

The wife of the complainant is one of these children 
and remaindermen, and brings this bill against the per- 
sonal representatives of the executors of her father to 
recover her share in his estate under the will. 

The testator, at his death, left a considerable family, 
consisting of his widow and several minor children, and 
three slaves of little value, together with the tract of 
land whereon he lived, some stock and personal estate 
of no great value. He left very little, if any, money. 



186 NASHVILLE : 



V. p. Porsey and Wife r. Jesse Luton, Ex*r, et al. 

  M I   iM     ^^ ^^^m^^i         II -■ ^^^li^^ »  .mi ^  

His executors, after his death, met and examined the 
amount and condition of his estate, and determined that 
it was not more than sufficient to support his family and 
educate his children, and, therefore, left it with the 
widow for that purpose, and made no sale of anything, 
but reported that the debts of the estate had been paid. 
The widow and her family resided upon the land devised 
to her for life until her death, in 1853, and she has 
no personal representatiye before the Court. 

We are of opinion that, under this will, Zilpha Jones, 
the widow, took an estate for life in the land, slaves, 
and other personal estate devised to her — including therein 
so much of the testator's cattle, horses, hogs, stock of 
every kind, household and kitchen furniture, and other 
personal effects as were then necessary, amply to sup- 
port her and her family; that it was the intention of 
the testator that his widow should enjoy and use this 
property in specie^ and that the same should not he 
sold by his executors during her life. 

It results that the remaindermen are only entitled to 
such part of the property originally given as remained 
after the death of the tenant for life. If the tenant for 
life has wasted or converted any part of the chattels 
to unauthorized uses, her estate will be liable for the 
amount so wasted or converted. 

But if it were consumed in the use intended to be 
made of it, or perished by time, or death of animals, 
or wear and tear of furniture and farming tools, the 
rights of the remaindermen are defeated, and they are 
entitled to nothing except what remained of the original 
tock. 

The executors of the testator cannot be held respon- 



DECEMBER TERM, 1858. 18T 

V. F. Foney and Wife r. Jesse Luton, Ex'r, ei aL 

Bible for this property while in the possession of the 
widow. 

The rents and use of the land, the hires and labor 
of the slaves, the accessions, crops, young animals — the 
offspring of those originally given — new furniture, tools, 
&c., constructed by the labor of the property given, and 
the entire fruits of the life estate belong to the tenant 
for life, absolutely, and make no part of the estate of 
the testator. Woods v. Sullivan^ 1 Swan, 507 ; ffen- 
derson v. Vaulx and Wife, 10 Yer., 80 ; 1 Hum., 498. 

We are satisfied, from the proof in this record, that 
the testator left very little, if any, money, and that the 
stock and other personal effects left with the widow 
were not more than sufficient for the support of herself 
and family, and the education of her minor children. 
But if desired, complainants may have an inquiry before 
the master as to this matter, with a view to reach their 
share in any surplus— charging the surplus, however, if 
any exist, with the funeral expenses and such debts of 
the estate, and the costs and charges of its administra- 
tion, as may have been paid by the executors or the 
widow, or as may be proper. 

And any of the personal estate which may have been 
advanced or given off to any of the children will not 
be charged either to the widow or executors, but the 
same will be adjusted among the children. 

No account will be taken as to the rents of the 
GuUedge tract of land, because we are satisfied nothing 
is due complainants as to that part of the estate. 

In the account of the sales of the personal estate, 
made in 1858, after the death of the tenant for life, 
by Henry Luton, the executor of William Jones, care 



188 NASHVILLE : 



V. F. Forsey and Wife v. Jesse Luton, Ex'r, et al. 



will be taken only to charge him with the proceeds of 
such of the original property or stock of the testator as 
remained after the death of the tenant for life, upon 
the principles of this opinion. 

And the said executor, or his estate, shall have such 
credits or allowances as may be just and proper in taking 
the account of such sale. 

As to the slave Vina, alleged to have been sold by 
the widow, her estate should only be held to account to 
the remaindermen for her value at and interest from the 
time of the widow's death; and her personal representa- 
tive should be made a party, so that it may be decreed 
against Henry Luton, the executor, if he participated 
with her in the breach of trust in the sale of this slave, 
will be held liable, jointly, with her estate, for the 
value of the slave and interest. As to his liability, we 
leave the question open for the decree of the Chan- 
cellor, when the personal representative of the widow shall 
become a party, upon the* proofs and principles appli- 
cable to the case. If she received the proceeds of the 
sale, her estate will be held, primarily, liable. And if 
applied to any extent in payment of the debts of the 
testator, her estate will, so far, be allowed credit in the 
account with the remaindermen. 

As the decretal order of the Chancellor, and the 
report of the clerk and master in the Chancery Court, 
proceed upon principles in some degree differing from 
the above, the former will be reversed and the latter set 
aside, and the cause remanded to the Chancery Court 
at Waverley to be further proceeded in upon the prin- 
ciples of this decree. 



DECEMBER TERM, 1868. 189 



Ira Connell v. The County Judge of Davidson. 



Ira Connell v. Thb County Judge of Davidson. 



1. Jail Inspectors. Powers of. Coats, Physician's bills. The power 
conferred upon jail inspectors, to "make rules and regulations for 
the preservation of the health and decorum of the prisoners," is con- 
fined to general sanitary and police regulations. It does not authorize 
them to charge the county with physician's hills for medical attention 
to the prisoners. Such bills do not form an item of costs provided 
for by law in prosecutions, either, for felonies or misdemeanors. 

2. Appbopriations. County Judge, Justices of the County Court. The 
County Judge has no power to make appropriations of county 
monies. This power belongs to the Justices of the County Court. A 
proceeding, therefore, to compel an appropriation of money out of 
the county treasury, should be against the Justices, and not against 
the County Judge. 



FROM DAVIDSON. 



This cause was heard at the September Term, 1858, 
Baxter, J., presiding. He refused the application for a 
mandamiLgy and the applicant appealed. 

A. L. Demoss, for the appellant. 

EwiNG & Cooper, for the County Judge. 

McKiNNEY, J., delivered the opinion of the Court. 

This was an application to the Circuit Court of Da- 
vidson for a manddimi8j to compel the County Judge 
of said county to audit, and issue a warrant on the 
Treasurer of the county, for the payment of an account 



I 2he ISbI 
[fll6 814| 



190 NASHVILLE: 



Ira Connell v. The County Judge of Davidson. 

claimed to be due to Connell, as a physician, for medi- 
cal services alleged to have been rendered to prisoners 
(confined in the jail of said county) at the request of 
the Jail Inspectors of said county. 

The County Judge, it seems, allowed the claim so 
far as services were rendered to prisoners confined upon 
a charge of misdemeanor; but refused to do so, where 
the persons were charged with felony. 

The Court properly refused the application, on vari- 
ous grounds: 

1st. The power conferred upon Jail Inspectors, to 
'' make rules and regulations for the preservation of the 
health and decorum of the prisoners," is confined to gen- 
eral sanitary and police regulations. It does not author- 
ize them to charge the county with physicians' bills for 
medical attention to the prisoners. Physicians' bills do 
not form an item of costs, provided for by law, in 
prosecutions either for felonies or misdemeanors. For 
such services, the prisoner is personally liable, as other 
persons. If able to pay, the physician must look to 
him for his bill; and if not, he must go unpaid, unless 
the County Court, or some one from motives of 
humanity, voluntarily assumes to pay. 

2d. From this view, it results, that the County 
Judge has no authority, in the absence of an express 
order made by a competent number of the Justices, to 
allow any such claim ; and, therefore, the allowance of 
any part of the claim, from the statement in the record, 
was a void act. 

8d. If the jail inspectors possessed the power to 
bind the County Court, the proceeding, upon their re- 



DECEMBER TERM, 1858. 191 



J. Beasley v. H. Jenkios et al. 



fosal to pay, should be against the Justices, and not 
against the County Judge, who has no power to make 
appropriations of county moneys. 
Judgment affirmed. 



J. Beaslet v. H. Jenkins et al. 



Will. CkmaiructUm, Persons taking as a class,. The fifth clause of the 
will is &s follows : ** I give all the halance of my land to my brother 
Hiram during his natural life ; and, at his death, my will is, that all 
my lands be sold — except what I have given above to my two nephews 
— and the proceeds of said lands to be equally divided between all my 
brothers' and sisters' children." Held, that the fund vestA in the de- 
scribed class, as a class, as it exists at the time fixed for distribution of 
the same ; and, under this clause, it goes to the children of the bro- 
thers and sisters of the testator, as a class, living at the termination of 
the life estate. 



FROM RUTHERFORD. 



This is an appeal from a decree pronounced by Chan- 
cellor Ridley, at the December Term, 1858. The facts 
are stated in the opinion of the Court. 

E. A. Kbeble, for the complainant. 

James M. Avent, for the defendant. 

MoKiNNET, J. delivered the opinion of the Court. 



192 NASHVILLE : 



J. Beasley v. H. Jenkins et cU. 



The questions in this cause arise upon the construc- 
tion of the will of Nimrod Jenkins, who died in Ruth- 
erford county, in August, 1837. 

The fifth "item" of the will is as follows: 

"I give all the balance of my land to my brother 
Hiram, during his natural life ; and, at his death, my 
will is that all my lands be sold — except what I have 
given above to my two nephews — and the proceeds of 
said lands be equally divided between all my brothers^ 
and sisters' children.*' 

In the sixth " item " of the will, the testator directs 
his executors to sell, immediately^ his house and lot in 
the town of Murfreesboro', his negro man Dembo, and 
stock of horses, cattle, &c., " and divide the money 
equally amongst my brothers' and sisters' children^ as 
soon as possible." 

Hiram Jenkins, the devisee for life, under the fifth 
clause of the will, died in 1857. 

At the [death of the testator, in 1837, twenty years 
prior to the falling in of the life estate, there were a 
large number of children of the brothers' and sisters* of 
the testator, residing, some in Tennessee, and others in 
four different States of the Union. Since then^ other 
children of testator's brothers* and sisters' have been 
born; and some who were then living, have died — some 
leaving issue, and others without issue. 

The complainant, who is sole surviving executor of 
the will, brought this bill to obtain the direction of the 
Court, as to who are entitled to take the proceeds of 
the lands, under the fifth "item** of the will. 

The Chancellor held, that the case must be governed 
by the rule laid down in Satterfield v. MayeSj 11 Hum. 



DECEMBER TERM, 1858. 198 

J. Beasley v. H. Jenkins et at, 

58. It is attempted to exclude the present case from 
the rule in Satterfield's case, by force of the provision 
of the sixth ^'item" of the will. By the latter clause, 
the fund thereby created, was to be divided, immedi- 
ately on the death of the testator ; and, of course, to 
such children of his brothers and sisters as were then 
in being. And sts the same class of persons are the 
objects of the testator's bounty, in the fifth as in the 
sixth clause, the intention is apparent, as the argument 
assumes, that the same persons who constituted the class, 
under the sixth clause, and in whom the interest vested 
under it, should take the remainder interest, under the 
fifth clause. The effect of which construction would be, 
that such of the ^*- children," living at the death of the 
testator, as still survive, and the issue of such as have 
since died, would take the remainder interest under the 
fifth clause ; but *' children " born of brothers and sis- 
ters, since the testator's deathj would be excluded. 

This construction cannot prevail. The rule governs 
both clauses alike. The fund created by each, vests in 
the described class, as a class, as it exists at the time 
fixed for distribution of the fund. 

There is nothing in any subsequent decision that 
militates with the rule in Satterfield's case, as properly 
understood and applied. 

Decree affirmed. 

12 



194 NASHVILLE : 



John G. Brazelton v. William Brooks. 



John G. Brazelton v. William Brooks. 



1. Sbt-off. TF%e7i allowed. A debt or demand, to be set-off, must be 
an existing debt or demand at the commencement of the plaintiff's 
suit. Otherwise, it cannot be allowed. 

2. Same. Same. Insolvency of the party. Chancery jurisdiction. If 
a party, who is insolvent, recovers a judgment against one to whom 
he is indebted, but who was not a creditor, so as to entitle him to his 
set-off at law, the latter may come into a Court of Chancery and be 
allowed to set-off his demand against the judgment thus recovered 
against him. 

8. Same. Chancery jurisdiction. Waiver of a defence. If a bill is 
filed seeking to set-off a demand against a judgment recovered against 
the complainant, and the defendant answers, virtually, submitting to 
the set-off, it is error for the Court to refuse the relief. The answer 
is a waiver of any objection to the jurisdiction of the Court. 



FROM FRANKLIN. 



This cause was heard at the February Term, 1858, 
before Chancellor Bidlet, who dismissed the bill. The 
complainant appealed. 

A. S. CoLYAR, for the complainant. 

John Frizzell, for the defendant, said: 

Brooks insists that the decree of the Chancellor 
should be affirmed — 

1. Because there is no evidence whaterer sustaining 
the allegations of fraud; and, that in the absence of 
this, the Chancery Court had no jurisdiction, and com- 
plainant's bill must be dismissed. 



DECEMBER TERM, 1858. 195 

- 

John G. Brazelton v. William Brooks. 

2. The indebtedness on the part of Brooks to 
Brazelton, if anj existed, was a defence of which com- 
plainant could have availed himself in the suit at law 
under Ms plea of payment, and there is no evidence in 
the record that he did not do so. 

3d. It is 3 defence of which Brazelton could 
have availed himself at law, if he did not; and could 
not be considered in the Chancery Court, unless the 
evidence showed that he was prevented from so doing 
by accident, fraud, or some act of Brooks, and there 
is no evidence to sustain such a position. Mice v. iZ. 
jB- Bankj 7 Hum., 89; Gtoinn v. Newton j 8 Hum., 
710. 



Wright, J., delivered the opinion of the Court. 

On the 20th of November, 1848, complainant, as the 
endorser of a note made by Brooks, paid for him to 
Robert and John Edwards, the sum of (881. 22; and 
on that day become his creditor for that amount. Brooks, 
in 1853, in the month of March or April, had obtained 
a judgment in the Circuit Court at Winchester, against 
complainant, for about 9400.00. 

The complainant, on the 8th of April, 1858, filed 
his bill in the Chancery Court at Winchester, to set-off 
the amount that Brooks owed him against the judgment, 
and alleged that Brooks was insolvent, and if allowed 
to collect his judgment against complainant, without abat- 
ing for the set-off, the debt would be lost. 



196 NASHVILLE : 



John G. Brazelton v. William Brooks. 



He asked and obtained an injunction to stay defend- 
ant until the set-off was allowed. 

The Chancellor, upon the hearing, refused to allow 
the set-off upon the ground that it was mattef of de- 
fence of which complainant could have availed himself 
upon the trial at law; and that he was not prevented 
from so doing by the fraud of the defendant, by acci- 
dent, or by any act of the defendant. 

In this, we think, he erred. Because we have been 
unable to find anything in this record which shows that 
complainant was a creditor of the defendant, or had 
paid the money to Robert and John Edwards, at the 
time of the institution of his suit against complainant; 
and it devolves on defendant to show this, if he insists 
complainant could have made his defence at law. 

. A debt or demand, to be set-off, must have existed 
at the time of the commencement of the plaintiff's 
suit. Jefferson County Bank v. Chapman^ 19 John's 
Rep., 822. 

It is plain that the set-off was not used upon the 
trial at law, for the defendant, in his answer, admits 
the existence of the debt to complainant, and assumes 
the position that his judgment at law is more than 
sufficient to pay off any demand that complainant may 
have against him ; and that, therefore, he ought not to 
be restrained from the prosecution of another action at 
law, which he had then pending against complainant for 
a matter not embraced in said judgment. 

He thus, virtually, submits to the set-off. In his 
answer, he makes no reference to, or reliance upon the 
matter, on which the Chancellor decided the case. He 
waives all that, if it ever existed. 



DECEMBER TERM, 1858. 197 

Scott, Baker & Co. v. R. C. Bandy. 

We suppose, that in view of the facts of this case, 
no valid objection can be urged against the jurisdiction 
of the Court, or the relief proposed. Because defendant 
is alleged in the bill to be insolvent, and that is, in 
effect, admitted in the answer. Smith v. Ross and Beeler^ 
3 Hum., 220. 

And if this were not so, and complainant had at 
first no ground to come into a Court of Equity, still 
the defendant did not demur, but filed an answer, and 
this, under the force of the act of 1852, ch. 365, sec. 
9, was a waiver of any objection to the jurisdiction of 
the Court. Acts of 1851-2, pages 673 and 674. 

We reverse the decree, and decree for complainant. 



Scott, Baker & Co. v. R. C. Bandy. 



1. Fartnjcbship. Power of partners to bind the firm. Each partner id 
the authorized agent of the firm, and may hind it in all matters within 
the scope of the partnership husiness, but not beyond this, except by 
authority, express or implied, from the other members of the firm. 

2. Same. Same, Acceptance for accommodation. It is not within the 
scope of the business of a mercantile firm to draw, accept, or endorse 
the paper of neighbors for accommodation. Hence, one partner can- 
not bind the other members of the firm, by note, endorsement, or ac- 
ceptance, in any transaction unconnected with the partnership busi- 
ness, and known to be so by the party taking it ; nor tor the party's 
own debt. 

3. Samx. Same, Same, Evidence, Subsequent ratification. Anactcf 
one partner, beyond the scope ot his authority, may be rendered ob- 
ligatory on the firm by antecedent or subsequent sanction by the other 
members of the firm. Proof of such sanction may be presumptive. 



198 NASHVILLE : 



Scott, Baker & Co. v. B. G. Bandy. 



That one member was in the habit of extending accommodations to 
others in the name of the firm, with approbation, or without dissent, 
would be sufficient evidence of authority, and the firm would be bound. 

4. Samk. Evidence. Competency of a partner aa a witness. A partner 
is not a competent witness to prove the existence of the partnership : 
but when proven, he is competent to prove the justice of the demand 
against the firm. This principle does not render a partner competent 
to prove that an obligation created by him in the name of the firm, 
and not within the scope of the partnership business, was authorized, 
or adopted, by the other members, so as to render the firm liable. 



FROM DAVIDSON. 



This cause was heard before Judge Baxter, at the 
January Term, 1858. Verdict and judgment for the de- 
fendant. The plaintiff appealed. 

Foster & MoEwiNa and E. H. Ewing, for the plain- 
tiffs. 

B. J. Meigs, for the defendant. 

Caruthers, J., delivered the opinion of the Court. 

The defendant is sued as acceptor of a draft or bill, 
which reads as follows: 

"$1,145.03. Nashville, August 10, 1854. Twelve 
months after date, pay to the order of Scott, Baker &; 
Co., eleven hundred and forty-five and 03-100 dollars, 
value received, and place to account of 

"BOWLING & WHELESS. 

"To Messrs. Bowling & Bandy. 

"Accepted August 19, '54.'* 



DECEMBER TERM, 1858. 199 



Scott, Baker & Co. v. R. G. Bandy. 



This draft was drawn by Robert P. Bowling, of the 
firm of Bowling k Wheless, and was accepted for ac- 
commodation by George S. Bowling, of the firm of Bow- 
ling k Bandy. It was drawn and used for the payment 
of a note, for that amount, then held by the plaintiffi 
against the drawers, for goods. 

By the law of partnerships, each partner is the au- 
thorized agent of the firm, and may bind it in all mat- 
ters in the scope and range of the business in which it 
is engaged, but not beyond this, except by some express 
or implied authority. In a mercantile partnership, one 
partner has not the power to bind the others by any 
note, endorsement, or acceptance, in any transaction un- 
connected with the partnership business, and known to 
be so by the party taking it; nor for his own debt. 
Story on Part., p. 208, note, cited in Bank of Ten- 
neisee v. SaffaranSy 8 Hum., 610. Such fact itself raises 
a presumption of want of authority, and is a fraud 
upon the other members by both parties. See same au- 
thorities. 

It is no part of the business of a mercantile firm, to 
draw, accept, or endorse the papers of neighbors, for 
accommodation ; no such thing is presumed to be con- 
templated by the parties in the formation of a partner- 
ship for trade, and consequently the power to do such 
acts is not communicated to any of the members, with- 
out express stipulation, and the firm is not bound, ex- 
cept by antecedent or subsequent sanction. But the proof 
of approval and ratification may be presumptive. That 
one member was in the habit of extending these accom- 
modations to others, in the firm name, with approbation, 
or without dissent, would be sufficient evidence of au- 



200 NASHVILLE : 



Scott, Baker & Co. v. R. 0. Bandy. 



thority, and all would be bound. This does not result 
from the fact of partnership, but presumed assent, from 
such general course of dealing. 

It will be readily seen from these general principles 
that the defendant is not liable in this case as a mem- 
ber of the firm of Bowling & Bandy, unless it can be 
established by proof, positive or presumptiye, that the 
act of acceptance by his partner, was authorized or 
sanctioned by him. 

This is attempted to be done by preying what he 
said, as to his authority from his partner, and also by 
his own deposition. This evidence was rejected by the 
Court as inadmissiblci and that is tbe error relied upon 
for reversal. There is no question but that the action 
must fail, if this proof is incompetent. The acceptance 
was by Bowling, in the name of Bowling & Bandy, for 
the accommodation of Bowling & Wheless, not in the 
presence of Bandy, and without any evidence of his 
authoriLy or sanction, either express or implied, except 
what is contained in the rejected deposition. There is 
no controversy as to the existence of the partnership at 
the date of the acceptance. To prove that, was not the 
object of introducing the partner. Bowling. For that 
purpose he would have been clearly incompetent, by all 
the authorities. But it is just as clear, that, if that 
was admitted or proved by others, he could be called to 
prove the "justice of the plaintiff's demand." Vamant 
V. Kat/y 2 Hum., 106. But what does that mean ? The 
fact in that case, which it was held he was competent 
to prove, was that the note, to which he signed the 
name of the firm, was for a just amount against it, and 
so the demand against the firm was just, and should be 



DECEMBER TERM, 1858. 201 



Scott, Baker & Co. v. B. G. Bandy. 



a charge upon all the members, because it was made by 
a partner in the business of the firm. Whether evea 
that position can be reconciled to the decision in Foster 
V. Hall ^ Eatoriy 4 Hum., 354, may be questioned. 
The same rule would extend to proof of the justice of 
an account, or other proper demand, arising out of the 
firm business. 

But the matter to be proved here by a partner was, 
that an act done outside of the firm business, and an 
obligation created by him in the name of the firm, was 
authorized or ratified by the other member. Not the 
'^ justice of the demand,'' but the existence of it as 
against his partner. Can he pro re that? The case of 
Vanzant v. Kay does not extend to that question. 

The proposition is to prove by one partner that an 
obligation created by him in the name of the firm, not 
within the scope of its business, was authorized or adop- 
ted by the other member, so as to create a joint and 
several liability. We are aware of no case that would 
authorize this. He is solely liable, and the effect of his 
e?idence for the plaintiiT, would be to cast it all upon 
the shoulders of another, in the first instance, and one 
half^ ultimately, and in any event. There can be no 
principle that would authorize this. It is not to estab- 
lish an existing demand against the firm, originating in 
the course of its legitimate operations, as in the case of 
Vanzant, but to establish a new and distinct authority 
for an unauthorized act of his owUj deleterious to the 
firm, and binding alone upon himself, without this evi- 
dence. 

This is more analogous to the case in 4 Hum., 449, 
where one joint maker of a note was held incompetent 



202 NASHVILLE: 



Andrew WoocU v, Joseph M. Burrough et al. 

witness against the other to prove the making of the 
note. 

Some other points are made upon the charge of the 
Court, but they are not seriously pressed as grounds 
for reversal, and need not be noticed. It is very man- 
ifest that without the excluded evidence the plaintiff 
could not have succeeded in making the defendant liable. 

Let the judgment be affirmed. 



Andrew Woods v. Joseph M. Burrough et ah 



1. Slaves. Sale of under a will. Bill of sale or other writing not ne- 
cessary , if possession delivered. If a sale of slaves is made under a 
power created by a will, and is absolute, and possession delivered by 
the executor, no bill of sale, or other written evidence is necessary 
to transfer the title to the purchaser. The verbal sale accompanied by 
delivery of possession, is as operative to pass the title, as a bill of 
sale. 

2. Lien. On slaves. Reserved by parol contract. As respects personal 
property, no lien exists by implication of law, and in no other mode 
can a valid lien be created in favor of the seller of a personal chattel, 
when the legal title and possession have been parted with, than by 
express contract, which, at least, as against creditors and subsequent 
purchasers without notice, must be in writing, and duly proved and 
registered. 



FROM FRANKLIN. 



This cause was heard at the November Term, 1858, 
before Chancellor Ridley, who pronounced a decree for 
the complainant. The defendants appealed. 



DECEMBER TERM, 1858. 208 

Andrew Woods v. Joseph M. Burrough et al. 

• P. TuR2?EY, for the complainant : 

On a verbal sale and deliverj of a slave at a fixed 
price, to be paid on a day certain; but until paid, the 
title to remain in the seller, the payment is a condi- 
tion precedent; till the performance of which, the prop- 
erty does not becorce absolute in the buyer, nor liable 
to his debts. Gambling v. Read^ Meig's Reports, 281. 

Where a fund is secured by the principal debtor for 
the payment of a debt, the security will be entitled, in 
equity, to have it applied to the discharge of the debt. 
Modes ^ Kelly v. Crockett ^ Adama^ 2 Yer., 346. 

The interposition of Courts of Equity is not confined 
to cases strictly of two funds and of different mort* 
gages, for it will be applied in favor of sureties when 
the creditor has collateral securities or pledges for his 
debt; in which case the Court will place the security 
exactly in the situation of the creditor, as to the secu- 
rities or pledges, whenever he is called upon to pay 
the debt. 1 Story Eq., sec. 638. 



A. S. CoLTAR, for the defendants: 

The first question is, did the administrator with the 
will annexed make a valid sale of the negro? That a 
sale of a slave by parol, when possession accompanies or 
follows the sale, is valid, notwithstanding the act of 
1784, there can be no doubt. 1 Hum. R., 466 ; 1 
Haywood, 58; 2 Haywood, 66; 5 Yer., 282; 10 Yer., 
507; Meig's R., 281. 



204 NASHVILLE : 



Andrew Woods v. Joseph M. Burrougb et id. 



The act of 1831 applies, alone, to creditors and pur- 
chasers, and does not, in any way, change the law as it 
stood between the parties. 

If the sale was a good one, and the title vested, 
was the lien of any binding force against an attaching 
creditor, being in parol f This case does not involve the 
question, whether a sale may not be made and the 
seller retain the title, by contract, to secure the purchase 
money, or rather, retain the title until the purchase 
money is paid. 

No such question is raised. The bill alleges a sale, 
but sets up that a lien was retained. This cannot be 
done ; to retain a lien, and to keep the title until the 
purchase money is paid, for the purpose of securing it, are 
very diflferent things. The former must be done by writ- 
ing, and it registered, to be good against creditors; but 
the latter may be done by parol. Bradshaw v. Thomas, 
7 Ter., 497; Gambling v. Bead, Meig's R., 281, and 
authorities cited; 2 Pick., 512; Story on Contracts, sec. 
499. 

Eetaining a lien is not retaining the title, for a lien 
is not a property in the thing, nor does it constitute a 
right of action for the thing. 2 Story Eq. Jurispru- 
dence, 1215. It is simply a charge upon the property. 
Same authority. 

A lien upon personal property can only exist when 
connected with the possession, or right to the possession. 
2 Story Eq., 1216, and note 2. 



DECEMBER TERM, 1858. 205 



Andrew Woods v. Joseph M. Burrough et al. 



McKiNNET J., deliyered the opinion of the Goart. 

In the year 1856, the personal representative of the 
estate of William Duncan, deceased, in pursuance of a 
power in him vested by the will of the testator, sold 
certain slaves belonging to the estate, at public auction. 

By the terms of sale, which were publicly announced 
at the time, a credit of twelve months was to be al- 
lowed, the purchasers giving bond with approved secu- 
rity; and it was further stated, that a lien would be 
retained upon the slaves sold, until the purchase money 
should be paid. 

One Oldham became the purchaser of a negro man 
named '^Dock,'' at said sale, at the price of (1053.00, 
for which he executed an obligation, with the complain- 
ant as his surety; and, thereupon, the slave was de- 
livered into the possession of Oldham. No bill of sale 
was executed by the executor, to Oldham, nor does it 
appear that any such thing was thought of, or deemed 
necessary, by the parties. There was no reservation of 
the title to the slave; on the contrary, it is manifest 
from the proof, that it was the intention and under- 
standing, on all hands, that both the right of property 
and possession should pass immediately to the purchaser ; 
nothing more being contemplated by the reservation than 
a naked lien; and even of this, there was no notice in 
the written terms of sale, as set forth in the advertise- 
ment, nor in the obligation taken for the purchase money, 
it rested merely in parol. 

It appears that on the 18th of November, 1857, suit 
was brought upon the obligation for the price of the 
the slave '^Dock," against Oldham and complainant. 



206 NASHVILLE : 



Andrew Woods v. Joseph M. Burrough et oZ. 

Judgment was obtained thereon on the 29th of March, 
1858, and said judgment was satisfied by the complain- 
ant, Woods, on the 17th of July, 1858, as the surety 
of Oldham. 

It further appears, that a few days after the insti- 
tution of said suit against Oldham and the complainant, 
to-wit : On the 24th of November, 1857, the defendants, 
who were creditors of Oldham, filed an attachment bill 
against him, whereon process of r.ttachment was awarded 
by the Ceancellor; and, on the same day, they caused 
their attachment to be levied on the slave "Dock," to- 
gether with other property of the said Oldham's. 

The complainant, thereupon, filed this bill to enjoin 
the defendants from proceeding to subject said slave 
" Dock" to the satisfaction of their debt. The supposed 
equity of the bill is grounded upon the assumption, that 
the personal representative of Duncan retained a valid 
lien upon the slave to secure the payment of the pur- 
chase money; and complainant having been compelled to 
discharge the debt, as surety of the purchaser, is enti- 
tled to be substituted to the lien; and that, as against 
this equity, the defendants attachment is inoperative. 

The Chancellor so decreed; and the defendants ap- 
pealed. 

The question is, can the decree be maintained? We 
think not. We take it to be too clear to admit of dis- 
cussion, that the doctrine of an implied lien, in equity, 
in favor of the vendor of real estate (where the legal 
title has been conveyed to the vendee) to secure the 
unpaid purchase money, and no personal security has 
been given, has no application to sales of personal prop- 
erty: That, as respects the latter species of property, 



DECEMBER TERM, 1848. 207 



Andrew Woods v. Joaepb H. Burrough et aL 



no lien exists by implication of law; and in no other 
mode can a valid lien be created in favor of the seller 
of a personal chattel, where the legal title and posses- 
sion have been parted with, than by express contract| 
which, at least, as against creditors and subsequent pur- 
chasers without notice, must be in writing, and duly 
proved and registered. We do not controvert the princi- 
ple laid down in Gambling v. JReadj Meig's B., 281^ 
That case establishes, that, on a verbal sale of a slave, 
though possession be delivered to the purchaser, an agree- 
ment between the parties at the time, that the right 
of property, or title, shall remain in the seller, as secu- 
rity for the purchase money, is valid; and that in such 
case, the payment of the money is a condition prece- ' 
dent to the passing of the right of property to the pur- 
chaser, and that such agreement is valid without regis- 
tration, not falling within the description of any agree- 
ment required by our law to be registered. The same 
principle is recognized in Houston y^ Dyche^ Meig's R., 
76, and other subsequent cases. But these cases are 
wholly unlike the one under consideration. They rest 
upon the simple fact that the right of property was 
never parted with by the owner, but by express contract 
was retained to secure the purchase money ; the sale was / I 
only conditional. But, in the case before us, the sale 
was absolute and complete, and personal security taken 
for the purchase money. The sale was made under a 
power created by the will of the testator. No bill of 
sale, or other written evidence, was at all necessary to 
transfer the title to the purchaser. The verbal sale, ac- 
companied by delivery, without any reservation of title. 



208 NASHVILLE : 



Pilcher and Oataulifi, Adm'rs, v, Bichard Smith and Wife. 



"was as operative to pass the title to the purchaser, as 
would have been a bill of sale. 

This principle is established by repeated decisions of 
this Court. 6 Yer., 282; 10 Yer., 507. 

In this view it is clear, that no lien existed in favor 
of Duncan's representative ; and, therefore, there is noth- 
ing to which the complainant can be substituted. The 
decree will be reversed, and the bill be dismissed, but 
without costs. 



Pilcher and Cataulis, Adm'rs, v. Richard Smith and 

Wife. 



1. Specific Performance. Feme covert Contract by. A covenant 
to convey real estate, executed by a feyne covert, who is not invested 
with power to sell and convey the same as a feme sole, is void, and 
will not be specifically executed by a Court of Chancery. 

2. Sale of Real Estate. Feme covert. Frmid. The legal disability 
of coverture carries with it no license or privilege to practice fraud 
or deception on other innocent persons, nor will the disability be per- 
mitted to protect a person in doing so. Thus, if a married woman 
covenant to convey land, and, by reason of her coverture, the cove- 
nant is void, it would be a fraud for her to avoid the contract without 
restoring the purchase money, and it will not be permitted. 

8. Same. Same. Rescission of contract. Refunding of the purchase 
money. A married woman cannot avoid a sale of real estate made 
by her, without refunding the consideration money paid by the pur- 
chaser. 

4. Same. Same. Chancery jurisdiction. Specific performnnce. Rescis- 
sion of contract. Lien. A purchaser of real estate from a. feme covert 
whose covenant is void, has a right to come into a Court of Equity to 
obtain, either a specific execution, or rescission of the contract. And 
if the feme covert resist a specific execution, and the contract is re- 



DECEMBER TERM, 1858. '209 

Pilcher and GatauHs, Adm'rs, v. Richard Smith and Wife. 

scinded, as an incident to the rescission, the Court will order the 
repayment of the purchase money, and declare a lien upon the land 
to secure its payment. 



FROM DAVIDSON. 



At the November Tenn, 1868, Chancellor Frierson 
pronoanced a decree in favor of the complainants. The 
defendants appealed. 

JoEN Rbid, for the complainants. 

William Thompson, for the defendants, cited and 
commented upon Story on Con,, § 95; 1 Story's Eq., 
§ 243; Jones v. Perry^ 10 Yer., 80; Bird v. Pollard^ 
4 Ham., 362 ; Alston v. Boyd^ 6 Hum., 504 ; Code, §§ 
2869, 3229, 3236, 2481, 

McKiNNBY, J., delivered the opinion of the Court. 

On the 15th of July, 1846, the defendant, Hannah 
Smith, (being then a married woman,) bargained and 
covenanted to convey to Hannah Higgins (a free woman 
of color) a lot of ground in Nashville, for the consider- 
ation of $350. The bond for title recites that $200 of 
the purchase money was paid down, and a note executed 
for the residue, due on the 5th of September, 1847 ; upon 
payment of which, said Hannah Smith bound herself in 
the penalty of $700, to make the purchaser a good and 
sufficient title to said lot. 

The lot in question was conveyed by Alfred Balch 
14 



210 NASHVILLE : 



Pilchcr and Cataulis, Adm'rs, v. Eichard Smith and Wife. 

to Hannah Smith, on the 22d of September, 1845— she 
being, at the date of the conveyance, a feme covert. 
It is intimated in the record that the purchase monej 
was paid by the husband, and that the conveyance was 
to the wife, to protect the property from the husband's 
creditors. 

It is admitted in the answer that the price of the 
lot was fully paid by the purchaser. And it is also 
shown, that, in pursuance to the title bond, the defend- 
ant, Richard Smith, husband of said Hannah Smith, 
executed a conveyance to the purchaser for said lot, but 
the defendant, Hannah, utterly refused to join therein. 
She distinctly admits the payment in full of the pur- 
chase money, but states that it was paid to her husband. 
The proof tends to establish that her husband received 
it as her agent, though the fact is not very clearly 
made out. 

Hannah Higgins was put in possession of the lot at 
the time of the purchase, and continued in possession 
until her death, which took place in March, 1856. 
Complainant, Gataulis, is her sole heir-at-law, and the 
other complainant is the administrator of her estate. 

In December, 1855, the defendant, Hannah Smith, 
caused an action of ejectment to be instituted to oust 
said Higgins of the possession of said lot; and, after 
her death, the suit was revived against the complainant, 
as her heir-at-law. 

This bill was then brought to have a specific execu- 
tion of the contract, or, if that be not allowable, to 
have the purchase money refunded, and compensation for 
improvements, with a prayer for general relief, and, in 
the meantime, to have th^ action of ejectment enjoined. 



DECEMBER TERM, 1858. 211 

Pilcber and CatauHs, Adm'rs, v. Richard Smith and Wife. 

The Chancellor refused a specific execution, but de- 
creed that the purchase money should be refunded, with 
interest, and declared it a lien upon the lot ; and also 

decreed, that improvements which had enhanced the per- 
manent value of the lot should be set off against the 
rents. 

We think the decree refusing to execute the con- 
tract was proper. It is not pretended that Mrs. Smith 
was invested with any power to sell or convey the lot 
as a feme sole; and being a married woman, her cov- 
enant to convey was, simply, void. 

But though this be so, it must be borne in mind 
that the legal disability of coverture, or of infancy, 
carries with it no license or privilege to practice fraud 
or deception on other innocent persons ; nor will the 
disability be permitted to protect them in doing so. 
JBarham v. Turheville^ 1 Swan, 487; 1 Story's Eq., § 
885, and note 8; 2 Kent's Com., 240. 

The attempt, on the part of Mrs. Smith, to avoid 
the contract by resorting to a recovery in ejectment, 
without restoring the purchase money, was an aggravated 
fraud against an innocent purchaser, whose coBte and 
condition entitled her to expect the observance of good 
faith on the part of those who had dealings with her. 

It is well settled, in equity, that an infant cannot 
avoid a sale made by him during infancy, without re- 
funding the consideration money. Smith v. EvanSy 5 
Hum., 70. And we understand the principle to be, alike, 
applicable to a married woman. 

But it is assumed in the argument, that, inasmuch 
as Mrs. Smith is not actively invoking the aid of a 
Court of Equity to restore her to the possession of the 



212 NASHVILLE : 



Pjlcher and Cataulis, Adm*r8, v. Kichard Smith and Wife. 

lot, but has elected to resort to the legal forum, which 
is not possessed of the power to compel her to do equitj, 
or to impose terms as a condition of granting relief, it 
is not competent to a Court of Equity, at the instance 
of the purchaser, to compel her to refund the purchase 
money; that the remedy of the purchaser, if any exists, 
is at law. The first answer to this objection is, that 
there being no demurrer to the bill, no exception can 
be taken to the jurisdiction on the hearing. But, this 
consideration aside, we think it would be sticking in the 
bark to hold, that, although a Court of Equity would 
not permit Mrs. Smith to recover the lot without restor- 
ing the consideration money, yet it is powerless to re- 
strain her from doing so at law. If, upon an immutable 
principle of natural justice, the defendant be bound to 
refund the purchase money before being entitled to de- 
mand back the property sold, shall her fraudulent artifice 
of resorting to a Court of Law, in order to evade the 
repayment, debar a Court of Equity, on the application 
of the purchaser, from compelling her to do equity? 

But if we were to admit the law to be so, though 
we do not, still, upon the facts of this case, we think 
the decree ordering the repayment of the purchase money, 
and making it a lien upon the lot, was proper, in a 
difierent view, and is maintainable upon a well estab- 
lished general principle. The purchaser had an undoubted 
right to come into a Court of Equity, without regard 
to the action of ejectment, to obtain either a specific 
execution, or rescission of the contract. The husband was 
willing that the contract should be executed, and if the 
wife had voluntarily assented thereto, there can be no 
question but the Court might have so decreed. But 



DECEMBER TERM, 1858. 218 

Terrence HcManniu v. The State. 

having refused, as was her right, there can be as little 
doubt that the Court might decree a rescission; and as 
incident to the latter relief, it was clearly competent to 
declare a lien upon the lot to secure the repayment of 
the purchase money — and this against a married woman, 
as much as against one free from disability, upon the 
principle that such disability cannot be a protection 
against fraud. 

The decree will be affirmed. 



Tbrrencb McMannus v. The State. 



1. Eyidenck. Privileged communication. Attorney and client. Com- 
munications between a client and his attorney are under the seal of 
confidence, and cannot be disclosed in proof. It is not necessary to 
the application of this rule of evidence that a suit should be pending 
or anticipated, nor that there should be a regular retainer, or the pay- 
ment of a fee. But the communication must be in a professional 
character, in relation to some act passed, or right or interest in exis- 
tence.* 

2. Same. Sam^. Same. Does not apply to abstract legal questions. This 
rule of evidence relative to privileged communications, does not apply 
to cases where abstract legal opinions are sought and obtained on 



♦Can the party, or client himself be compelled, by a bill in Chancery, 
to produce a case which he has laid before counsel, with the opinion given 
thereon? Rcdeliffe v. Fursman, 2 Bro. P. C, 614 ; Ne^oton v. Beres/ord, 
1 You., 876; Bolton v. Coiy. of Liverpool^ 1 My. & K., 88; Pearse v. 
Pearse, 11 Jur., 52 ; 10 Yes., 267 ; 1 Green. Ev., { 240, and notes. 



214 NASHVILLE : 

Terrence McMannus y. The State. 

general questions of law, either ciyil or criminal. In such cases, no 
facts are or need be disclosed, implicating the client, and so there is 
nothing, of a confidentinl character, to conceal. 



FROM MONTOOMERY. 



The prisoner was convicted of manslanghter and 
sentenced to imprisonment for three years, at the Janu- 
ary Term, 1858, Turner, J., presiding. He appealed 
in error to this Court. 

G. A. ELarrel, for the plaintiflF in error. 

Sneed, Attorney General, for the State. 

Oaruthers, J., delivered the opinion of the Court. 

This is an appeal in error from a conviction of man- 
slaughter, in the Criminal Court at Clarksville. 

The main question is as to the admission of the 
evidence of Thomas W. Wisdom, an attorney, which it 
is insisted was under the seal of professional confidence. 
The facts are thus stated by himself: 

^^The evening before the killing, the defendant came 
to his office, where witness, Johnson, Lindsey, and sev- 
eral other gentlemen were, and enquired for Mr. Quarles, 
his partner, who was the Attorney General; was told 
that he was absent. Stated that he wished to see him 
in reference to a contemplated suit against one Thurman, 
a railroad contractor, for whom the defendant had been 
at work, and with whom he stated he had an unsettled 
account. Witness talked to him some with regard to his 



DECEMBER TERM, 1858. 215 

Terrence McMannas v, Tho State. 

suit with Thurman.*' Then said he had a difficulty with 
a man, got his finger cut, and wrested from him the 
knife, which he exhibited, and witness thinks it is the 
same shown on the trial. *'He then asked the witness 
in regard to the law of self-defence — how far a party 
assailed could go in defending himself. The defendant 
was much intoxicated. Witness states that he did not 
regard the relation of client and attorney as existing 
between defendant and himself. He did not suppose the 
defendant knew him, or knew him to be a lawyer, but 
he was the partner of Quarles, the person enquired 
for by defendant ; that both their names, on separate 
signs, were upon the office door. He advised him as 
desired." 

Objection was made to him as incompetent, but the 
Court overruled it. 

Are these facts sufficient to establish the relation of 
client and attorney ? If so, a new trial must be granted, 
because we cannot tell what effect it may have had 
upon the jury, as it was a very pregnant fact occurring 
just the evening bsfore the homicide. It showed that 
his mind was engaged on that subject, and he was de- 
sirous to know how far he could go and be safe under 
the law. That is the very defence set up in this case. 

Sound public policy seems to have required the estab- 
ment of the rule that facts communicated by a client to 
his counsel^ are under the seal of confidence, and cannot 
be disclosed in proof. It is a rule of protection to the 
client, more than a privilege to the attorney. The lat- 
ter is not allowed, if he would, to break this seal of 
secrecy and confidence. It is supposed to be necessary 
to the administration of justice, and the prosecution and 



216 NASHVILLE : 



Terrence McMannus v. The State. 



defence of rights, that the communications between clients 
and their attornies should be free and unembarrassed 
by any apprehensions of disclosure, or betrayal. The 
object of the rule is, that the professional intercourse 
between attorney and client should be protected by pro- 
found secrecy. It is not necessary to the application of 
this rule, as was held in some of the old cases, now 
overruled, that a suit should be pending or anticipated, 
(1 Greenl. Ev., 240, note,) nor that there should be a 
regular retainer or the payment of fees. 1 Greenl. on 
Ev., § 241. But he must be applied to for advice or 
aid in his professional character, and that in relation to 
some act past, or right, or interest in existence. The 
rule has no reference to cases like the one before us, 
where abstract legal opinions are sought and obtained on 
general questions of law, either civil or criminal. In 
such cases no facts are or need be disclosed implicat- 
ing the party; and so there is nothing to conceal, of a 
confidential nature. 

If the defendant had perpetrated an act, and applied 
for legal counsel and advice in relation to it, secrecy 
would be imposed ; but where no act had been done, 
or if done, not disclosed, and only a general opinion on 
a question of law was asked, there would be no pro- 
fessional confidence. It would be monstrous to hold, 
that if counsel was asked and obtained, in reference to 
a contemplated crime, that the lips of the attorney would 
be sealed, when the fact might become important to the 
ends of justice in the prosecution of crime. In such a 
case the relation cannot be taken to exist. Public 
policy would forbid it. We presume the rule has never 
been extended so far, nor will it be. 



DECEMBER TERxM, 1858. 



217 



James Kippy v. The State. 



The State, then, was entitled to this testimony, whether 
it was entitled to much or little force in establishing 
the crime upon defendant. 

The defendant's counsel also contend that the proof 
is insufficient to sustain the verdict. Upon weighing it 
carefully, we have come to a different conclusion, and 
concur with the jury in their opinion that the crime of 
manslaughter, at least, is fully made out. The com- 
mencement of the fight was not seen, but the circum- 
stances show that the fatal stab must have been given 
under a state of facts that would, at the lowest, amount 
to the crime of which he was convicted. 

The judgment will be affirmed, and the sentence, of 
five years imprisonment from this day, enforced. 



James Rippy v. The State. 



Criminal Law. Homicide. Self-defence, To excuse homicide on 
the ground ol self-defence, the dang(T to life, or of great bodily harm, 
must ho either peal, or honestly believed to be so, at the time of the 
killing, and such belief of danger must be founded on reasonable 
grounds. There must, not only, be sufficient cause to authorize the 
fear of death or great bodily harm, but such fear must be really en- 
tertained, and the killing done under an honest and well founded 
belief that it is absolutely necespary in self-defence. 

Same. Same. Same. Antecedent menaces. The danger must be 
present and imminent. There must be some words or overt act at 
the time clearly indicative of a present purpose to do the injury. 
Previous threats, or even hostile acts, how violent soever they may 
be, wi]If|ot, of themselves, excuse a homicide. 



2he 217 
117 442 
117 443 



t 



218 NASHVILLE : 



James Rippy v. The State. 



8. Same. Same. Same. Same. Evidence. The character of the de- 
ceased for violence, as well as his animosity to the defendant as indi- 
cated by his words and actions, then and before, are proper matters 
for the consideration of the jury in ascertaining whether the defend- 
ant had reasonable cause to fear, and did fear, that his life would be 
taken, or great bodily harm done him. 



FROM BEDFORD. 



The plaintiff in error was tried and convicted in the 
Circuit Court of Bedford county, at the April Term, 
1858, Davidson, J., presiding. He appealed. 

W. H. WiSENER, for the plaintiff in error. 

Sneed, Attorney General, for the State. 
Caruthers, J., delivered the opinion of the Court. 

James Rippy was indicted in the Circuit Court of 
Bedford county for the murder of Houston Porter, and 
convicted of murder in the second degree, and senten- 
ced to twenty-one yeais confinement in the penitentiary. 

The verdict is well sustained by the testimony. The 
defence, it seems, was rested upon the existence or ap- 
prehension of danger to himself at the time of the 
homicide. It is now insisted there is error in the 
charge on^ that doctrine. The objection is confined to 
this clause. 

"It is argued the deceased made violent threats 
against the life of defendant long before, and up to a 
short period of the killing, and that these threats com- 
ing to the knowledge of defendant, he had a right to 



DECEMBER TERM, 1858. 219 

I, . _ _  ^ 

James Rippy v. The State. 

kill the deceased on sight. Such is not the opinion 
of the Court; but to excuse the defendant, and there- 
fore acquit him, the evidence ought to be such as to 
have reasonably satisfied the defendant that the deccased| 
at the time of the killing, w^s doing some overt act, 
or making some demonstration showing a present inten- 
tion to carry such threats into execution, otherwise it 
would not excuse him." 

The law, as thus laid down by the Court, is sub- 
stantially correct. The doctrine of the Grainger case, 
as explained by that of Copeland, is undoubtedly the 
law. Yet no case has been more perverted and misap- 
plied by advocates and juries. We have had one case 
before us in the last few years, in which the broad 
proposition stated in the first of the above extract 
was charged as law. But for this, and the indications 
that it has obtained to some limited extent in the legal 
profession, it would scarcely be deemed necessary to 
notice it. There is no authority for such a position. 
It would be monstrous. No Court should for a moment 
entertain or countenance it. The criminal code of no 
country ever has, nor, as we presume, ever will, give 
place to so bloody a principle. 

The law on this subject is, that, to excuse a homicide, 
the danger of life, or great bodily injury, must either 
be real, or honestly believed to be so at the time, and 
upon sufficient grounds. It must bo apparent and immi' 
neriL Previous threats, or even acts of hostility, how 
violent so ever, will not of themselves excuse the slayer, 
but there must be some words or overt acts at the time 
clearly indicative of a present purpose to do the injury. 
Past threats and hostile actions, or antecedent circum- 



L 



220 NASHVILLE : 



\ 



James Kippy v. The State. 



Stances, can only be looked to in connection with pres- 
ent demonstrations as grounds of apprehension. To con- 
stitute the defence, the belief or apprehension of danger 
must be founded on sufficient circumstances to authorize 
the opinion that the deadly purpose then exists, and the 
fear that it will at that time be executed. The char- 
acter of the deceased for violence, as well as his ani- 
mosity to the defendant, as indicated by words and 
actions then and before, are proper matters for the con- 
sideration of the jury on the question of reasonable 
apprehension. Even if sufficient cause to fear does exist, 
but the deed is not perpetrated under the apprehension 
it is calculated to inspire, or the fear is feigned or 
pretended, the defence will not be available. So a case 
must not only be made out to authorize the fear of 
death or greit harm, but such fear must be really en- 
tertained, and the act done under an honest and well 
founded belief that it is absolutely necessary to kill at 
that moment, to save himself from a like injury. It is 
scarcely necessary to remark that a real or apparent 
necessity, brought about by the design, contrivance, or 
fault of the defendant, is no excuse. 

If any less injury than death or great bodily harm 
is feared or indicated by the circumstances, the plea of 
self-defence will not be sustained, but the degree of the 
crime may be reduced. 

According to these principles, the guilt of the de- 
fendant was clearly made out — there was no error in 
the charge, and the judgment will be affirmed. 



DECEMBER TERM, 1868. 221 



James W. Starncs and Wife v. Jas. P. Allison et al. 



James W. Starnes and Wife v. Jas. P. Allison et al 



1. Specific Performanck. Not en/weedif title defective. A specific 
performance of a contract for the sale of land will rot be enforced, 
unless the vendor can make the vendee a good and indefeasible title. 

2. "Will. Construction of. Settlement. Power of appointment. The 
will contains the following clauses: **I give, devise and bequeath 
urto may daughter, Mary C. Kuddcr, all my estate or property of 
every description," * * * "of which I may die seized or pos- 
sessed,"  * * "to have and to holo all of said estate or property 
unto her, the said Hary C. Rudder, her heirs and assigns forever* 

• But if the said Mary C. should marry, said estate or property is to be 
her own sole and separate estate, and the same, and every part and 
parcel thereof, as well as its increase and profits, shall remain free 
from the contracts and obligations of any person with whom she may 
intermarry, during her coverture, as though she had remained sole." 
* * * "In the event of the death of my said daughter without 
lawful issue, living at the time of her death, it is my will that all the 
estate and property, devised and bequeathed unto her, shall go as she 
may, by any instrument in the nature of a last will under her hand 
and seal, witnessed by three or more witnesses, direct; and the power 
to dispose of the same and its increase in the event of her death with- 
out issue, either before or after the age of twenty-one years, and 
either while single or covert, is hereby given her, to be exercised and 
executed in the manner just prescribed, and in no other manner; but 
in the event she leaves issue, she may provide for that issue in what- 
ever manner s)io deems best, and in that event my intent is not to 
limit her power over her estate at her death, in any manner what- 
ever." Held: 

1. That the property bequeathed to the said Mary C. Kudder, and 
its increase and profits are restricted to her separate use, and guarded 
against the contracts and obligations of her husband. 

2. She may, at her deaths whether she be a minor or of age, single 
or covert, if she have no issue then living, dispose of her property, at 
discretion, by an instrument under seal in the nature of a will, with 
three or more witnesbcs. This power is to be exercised in the manner 
prescribed, and in no other. The daughter cannot dispose of the 
property by deed, gift, or sale. 

3. In the event she leaves issue, she may provide for that issue as 
she thinkfi best, not confining her to an equal distribution of the 



222 NASHVILLE : 



James W. Starnes and Wife v, Jas. P. Allison et al. 

property among them. Her power is to be unlimited, but it must be 
exercised at the time and in the manner pointed out by the testator. 

4. If the daughter marry, and she and her husband sell the real 
estate, a specific performance of the contract cannot be enforced, be- 
cause they cannot convey a good title to the purchaser. 



FROM WILLIAMSON. 



Decree for the complainants at the October Term, 
1858, before Chancellor Frierson. The defendants ap- 
pealed. 

John Marshall and W. F. Cooper, for the com- 
plainants. 

E. C. Cook, R. Houston and N. S. Brown, for the 
defendants. 

Caruthers, J., delivered the opinion of the Court. 

This bill is filed for the specific performance of a 
contract made the 4th of May, 1858, for the, sale by 
the complainants, of a tract of 637 acres of land in 
Williamson county, for $30 per acre, to the defendants. 

The defendants resist upon the ground that a good 
title cannot be made to them. This is the only defence 
to the prayer of the bill. 

The title is in the complainant, Mary C. Starnes, 
formerly Mary C. Kudder, and was derived from her 
father, Richard H Rudder, under his will. 

The two " items " upon which the question depends, 
are as follows: 



DECEMBER TERM, 1858. 223 

James W. Starnes and Wife v. Jas. P. Allison et oL 

^^Item 1st. I give, devise and bequeath unto my 
daughter, Mary C. Rudder, all my estate or property of 
every description, * * * * of ^hich I may die 
seized or possessed, * * * to have and to hold, all 
said estate or property unto her, the said Mary C. 
Rudder, her heirs and assigns forever. But if the said 
Mary C. should marry, said estate or property is to be 
her own sole and separate estate, and the same and 
every part and parcel thereof, as well as its increase 
and profits, shall remain free from the contracts and 
obligations of any person with whom she may inter- 
marry, during her coverture, as though she had remained 
sole." 

^^Item 2d. In the event of the death of my said 
daughter without lawful issue living at the time of her 
death, it is my will that all the estate and property devised 
and bequeathed unto her, shall go as she may by any in- 
strument in the nature of a last will, under hand and 
seal, witnessed by three or more witnesses, direct; and 
the power to dispose of the same and its increase, in 
the event of her death without issue, either before or 
after the age of twenty-one years, and either while sin- 
gle or covert, is hereby given her, to be exercised and 
executed in the manner just prescribed, and in no other 
manner; but in the event she leaves issue, she may pro- 
vide for that issue in whatever manner she deems best, 
and in that event, my intent is not to limit her power 
over her estate at her death in any manner whate\rer." 

Mary C. was the only child of the testator, and he 
left to her all his large estate, except one tract of land 
devised in the third item of his will. She was then 
unmarried and quite young. His leading object seemed 



224 NASHVILLE : 



James W. Starnes and Wife v. Jas. P. Allison et al. 



to be, that she should not only be protected in the en- 
joyment of the property accumulated by a long life of 
labor and toil, but be entrusted with the discretion of 
making such disposition of it as her pleasure or sense of 
duty might dictate in any and all events. But he was, 
perhaps, a man of experience and observation, and con- 
templated the dangers that might arise in certain changes 
in her condition, that would probably come up in her 
pursuit of happiness when she reached the state of 
womanhood. So in case of her marriage, all the prop- 
erty given, and its increase and profits, were restricted 
to her separate use, and guarded against the contracts 
and obligations of her husband. No power of disposition 
would be obtained by the husband under his marital 
right. So far, no express restrictions are imposed upon 
her power of disposition, nor is any particular mode pre- 
scribed by which it may be done. That is reserved for 
the next item, and both have to be taken together in 
order to ascertain the extent of her rights and powers. 

The time and mode of disposition is fixed in the 
second item: 

She may, at her deaths whether she be a minor or 
of age, ^' single or covert,'' if she have no issue then 
living, direct how her property shall go; but this must 
be done by some instrument under seal, in the nature 
of a will, with three or more witnesses. Here is an 
evidence of his solicitude to protect her against influence 
or imposition. This power, he says, shall be exercised 
in the manner prescribed, "and in no other manner.'* 
She is not permitted to do it by gift, or sale, or deed. 
Since the case of Morgan v. Elam^ 4 Yer., 374, where 
this doctrine is fully examined and settled, the law has 



DECEMBER TERM, 1858. 225 

James W. Starnes and Wife v. Jas. P. Allison ei oL 

been understood in this State to be, that the power of 
a married woman over her separate estate does not ex- 
tend beyond the plain meaning of the deed creating the 
estate, and that she is to be considered a feme eole in 
relation to it, only so far as the deed has conferred 
upon her the power of acting as such. When a particu- 
lar mode is pointed out for the exercise of this power 
of disposition, she cannot dispose of it in any other 
way. But in this case the right to sell and dispose of 
it by deed, is claimed. Still more, the power to unite 
with her husband in the sale, it is said, is given by this 
wU). 

But the last clause in the second item provides for 
another state of facts : ^' In the event she leaves issue, 
she may provide for that issue in whatever manner she 
deems best, and in that event, my intent is not to limit 
her power over her estate at her death, in any manner 
whatever." 

It is argued that this enlarges her power again to 
the extent given in the first clause of the first item ; 
that is, that it removes the restrictions fixed in the pre- 
ceding part of the second item, and makes it unlimited. 
But it will be observed that this power, no matter how 
lai^ge it may be, only arises upon the contingency that she 
leaves issue, and can only be exercised ** at her death.*' 
Can it be exerted before she dies, and before it is known 
whether the *^ event" on which it depends will occur or 
not, and by deed instead of a willT When she comes to 
die, and has no longer any use for the property I have 
given her; when it ceases to be needed for her enjoyment 
and happiness, which is my great concern, she may make 

a will, and provide for her issue as she thinks best I 
15 



226 NASHVILLE : 



James W. Starnes and Wife v. J as. P. Allison et aL 



do not intend to compel her to make an eqaal division 
among them; or, perhaps, even to give it to them at all, 
if she chooses not to do so : her power is to be unlimited 
over the property, if she desires to exercise it in the 
mode indicated. 

It is most manifest, that the leading object and con- 
trolling inten£ of the testator, was to secure all this prop- 
erty, and its proceeds and profits, to the use, control, and 
benefit of Jbis daughter, as long as she might live, without 
any power, even in herself, and much less any one else, 
under whose influence a change in her condition might 
place her, to deprive herself of it. But when she should 
need it no longer, at her death, whether with or with- 
out children, he intended to give her the unrestricted 
power of selecting the objects of her bounty, and become 
the free and untrammelled benefactress of others, as her 
father had been to her. The whole arrangement presents 
the highest evidence of paternal love, and tender regard 
and confidence. His observation had taught him that his 
daughter might, without her fault, by over-confidence in 
others, be bereft of the ample provision made for her, 
if the power of disposition was not withheld. Her 
youth and inexperience at first, and after that her mar- 
riage, and the changes and new influences it brings upon 
the wife, made it wise and prudent to save her from 
herself. Then, after this first great object, her comfort- 
able and ample support and happiness was fully accom- 
plished, he places the whole power in her hands, and 
allows her to become the fountain of fortune and happi- 
ness to others. 

The construction contended for by the counsel for com- 
plainants, would subvert the whole object and design of a 



DECEMBER TERM, 1858. 227 



Francis H. Pugh et al. r. The State. 



settlement like this. If the husband can, by getting the 
wife to join him in a conveyance, dispose of her separate 
property, tied tip and secured as this is by the limitations 
and restrictions of the will, what use would there be in 
the guards thrown around it, and the provision by which 
the power of disposition is withheld, even from herself, 
until her death? 

We think this is the proper construction of the will, 
^nd the result is, that the complainants have no power 
to sell the land in question, and cannot, therefore, com- 
municate a good title to defendants. The contract will, 
then, be annulled, the bill dismissed, and the decree re- 
versed. 



Francis H. Pugh et al. v. Tub State. 



1. Bail. Recognizance, Power of justice of the peace to take. Act of 
J715, eh. 16, 2 1. By the act of 1716, ch. 16, { 1, in all criminal 
offences that are bailable by law, the committing mugistrato is re- 
quired to <* admit the party to bail." The act is silent as to the form 
in which bail shall be taken, but it may be done by bond or recogni- 
zance. 

2. Same. Scire facias. Demurrer. Judgment nisi. The judgment 
nisi must show that the recognizance was returned into Court, but it 
is not necessary that it should be expressly stated in the judgmt^nt. It 
is sufficient, if it is stated that it appeared to the Court that such a 
recognizance had been entered into before the committing magistrate. 

8. Same. Same. Not neeeaaary that it should show when the Court met. 
It is not necessary that a writ of scire facias^ issued upon a judgment 
nisi against bail, should show on what day the Court at which the 
judgment was rendered commenced. The Courts will take judicial 
notice of the terms of the several Courts within the territorial limits of 



228 NASHVILLE : 



Francis H. Pugh et al^ v. The State. 



the State, and the days on which the terms commence. And if the day 
on which the forfeiture is taken is recited in the aei. fa,, the Court can 
see, without an express statement, whether it was on a day after the 
commencement of the term. 

4. Samk. Same. Need not recite that the prisoner was adjudged ffuiliy. 
A scire fadas need not recite that the prisoner was adjudged guilty, 
hy the justice, of the offence charged. No formal judgment of the 
guilt of the accused, by the committing magistrate, is required. The 
adjudication that the party shall stand committed, or give bail for his 
appearance to answer the charge before the tribunal having cogni* 
zance of the offence, is a sufficient performance of the duty imposed, 
by law, on the examining magistrate. 

6. Rbcoovizakce. Lien of. When taken by a magistrate. Question 
reserved. A recognizance entered into in a Court of Record, forms a 
direct and specific lien upon all the lands owned by the party at the 
time of its acknowledgment, or afterwards acquired by him. And 
f^om the force and effect of a magistrate's recognizance, upon its being 
returned into a Court of Record, the legal consequence, as respects the 
lien, must necessarily be the same; but whether the lien in the latter 
case shall be held to attach only upon the return of the recognizance 
into Court, is reserved. 



FROM GIL£8. 



Judgment final was rendered at the August Term, 
1857, Martin, J., presiding. The sureties sued out a 
writ of error. 

Walker, for the plaintiff in error. 

It is contended that the judgment in this cause is 
erroneous, and should be reversed for the following 
reasons : 

The magistrates who tried the defendant, Pugh, when 
he was arrested, do not say, in their judgjient or de- 
lusion that the said Pugh has committed any crime or 
offence whatever. They merely say, ^'that having heard 



DECEMBER TERM, 1858. 229 

FnnciB H. Pugh et al, v. The SUte. 

_ 

the evidence in this case, consider that the defendant 
give bail and sufficient secnritj in the snm of three 
thousand dollars, conditioned to make his personal ap- 
pearance at the next term of the Circuit Court of Giles 
county, to be held at Pulaski, on the second Monday 
in December." The magistrates had no right to require 
the defendant, Pngh, to give bail, unless they believed, 
from the proof, he had been guilty of some crime, and 
that that crime was bailable; and they should have said 
so in their judgment. The act of 1715, ch. 16, § 1, 
(Car. k Nich., 426,) says that '^no person within this 
State shall be committed to prison for any criminal 
matter, until examination thereof be first had before 
some magistrate, which magistrate shall admit the party 
to bail, if bailable," &c. A magistrate has no right to 
require an innocent man to give bail, and there is noth- 
ing in the judgment of the magistrates showing that 
Pugh is not an innocent man, and nothing to show they 
had a right to require him to give ball, and a scire 
facias cannot be grounded upon a recognizance not 
authorized by law, nor can any judgment be pronounced 
upon it. Owen v. Grundy and Rucks, 8 Yer., 436- 
439. See, also, act of 1817, ch. 100, § 1, (Car. & 
Nich., 429,) which says: "If the justice shall be of 
opinion the defendant is guilty of the offence, he shall 
bind him over to Court." 

Neither the scire facias or judgment nisi shows upon 
its face that the defendant, Pugh, has really forfeited 
his recognizance. His recognizance says, "he shall 
make his appearance at the Circuit Court of Giles 
county, on the second Monday in December, (being 
States day,) and the second Monday of the December 



230 NASHVILLE : 



Francis H. Pugh et at. v. The State. 



Term of said Court;** and the scire facias says, the 
said Pugh, on the 19th of December, 1856, a day of 
said term, Tras called to come into Court, and came not, 
without saying the 19 th of December was the second 
Monday of said term or States day, or a day of said 
term after the second Monday or States day. The 19th 
day, from all that appears in said ««>« facias^ .may 
have been before the second Monday of said term, and 
before the defendant, Pugh, was bound to appear. And 
the judgment nisi merely says, " on this day the said 
Pugh was called to come into Court ; came not ;" without 
saying upon what day of said term he was called, and 
without stating any breach of said recognizance. The 
scire facias should recite upon its face a breach of the 
recognizance or bond. McComhs v. Hall and Boddie, 4 
Yer., 455, 456; Martin v. Garden, 3 Hayw., 173. 

The Court cannot look outside of the scire facias in 
aid of its defects or omissions. State v. Arledge, 2 
Sneed, 229, 231; Knott v. Smith, 2 Sneed, 246, 247. 

It is contended that the judgment nisi is radically 
defective. It is a summary proceeding, and ought to 
assume every fact necessary to be proved to consti- 
tute the liability of the defendants. Dickenson v. Kin- 
caid, 11 Hum., 72. Said judgment nisi does not show 
upon its face that the recognizance was returned into 
the office of the clerk of the Circuit Court of Giles 
county, or that said defendants signed, sealed, and de- 
livered said recognizance, or that they acknowledged the 
same before a justice of the peace of Giles county, or 
any other judicial officer authorized to take the same. 
State V. Arledge, 2 Sneed, 229-231; State v. Cherry, 
Meigs* Rep. 236. 



DECEMBER TERM, 1858. 231 



Francis H. Pugh et al. v. The State. 



A scire facias is foanded upon a record, and recites 
nothing that is not of record. Nicholson v. Patterson^ 
2 Hum., 448. 

And it is contended that the scire facias in this 
cause should have recited nothing hut the judgment nm, 
or the facts set forth in said judgment. All the bal- 
ance is merely a historical statement made by the clerk 
without any authority, and should not he looked to. 
And if the judgment nisi is defective and void, the 
historical statement of the clerk cannot cure it. The 
judgment nisi must embody such a statement of the 
facts as will show directly and certainly, and not by 
mere inference only, the liability of defendants. Knott 
V. Smith, 2 Sneed, 247; 3 Hum., 225; 11 Hum., 72. 

The pretended recognizance in this case was not 
signed or sealed by any of the defendants, and the 
same is therefore void. Justices of the peace have no 
authority to take a recognizance. It can only be taken 
by a Court of Record, and a magistrate's court is not 
a Court of Record; and there is no statute that au- 
thorizes a magistrate to take a recognizance. They may 
take bail, if the case is bailable, but must do so by 
requiring bond and security, signed, sealed, and delivered. 

If the justice had the power to take the recogni- 
zance, the defendant should have been recognized to 
appear at the next term of the Circuit Court, and not 
on the second Monday in the next term. The statute 
requires the justice to take' bail for the appearance of 
the defendant at the next term of the Courts and not 
on any particular day of the term. 

The final judgment states that two writs of scire 
facias had been issued against the defendants, and re- 



882 NASHVILLE : 



Francis H. Pugh etal, v, Tdo State. 



turned not found, when thej show that they were ex- 
ecuted upon all the defendants except F. H. Pugh. 
This is error for which the judgment should be reversed. 

The act passed the 27th of February, 1852, hfu 
nothing to do with this case. See Acts of Assembly, 
1851-52, p. 421, § 9, of said act. This act merely 
declares that bonds and recognizances good at common 
law, shall be good statutory bonds and recognizances. 

The defendant cannot be required to appear at a 
time different from that stipulated, even if the Legisla- 
ture changes the time of holding Court. State y. Ste- 
phen$y 2 Swan., 308. 



Sneed, Attorney General, for the State. 

It is manifest that the words recognizance and bail 
are used in our statutes as convertible terms, and it 
has been the settled course of decision in this State for 
years past to recognize this form of obligation, when taken 
by a justice of the peace, as legal and binding. It was 
so understood by the compilers of the revisal of 1836, 
who, as the Court will see, have prescribed a form for 
such obligations, when taken by justices of the peace ia 
criminal cases. See act of 1715, ch. 16, § 1, C. & N., 
426, and note the word recognizances, as used in that 
act. See, also, the form of the bond predicated of 
said act, C. & N., 760. 

And so, also, are these words used at common law. 
Thus it is said : '^ In all cases where the party is ad- 
mitted to bail, the recognizance is to be returned to the 



DECEMBER TERM, 1858. 288 



Francis H. Pugh 4t al. v. The Stete. 



Court having jurisdiction of the offence." 1 Bout. L. 
D., 163. 

But it is said that the very definition of the word 
occludes the idea that a jostice of the peace has author- 
ity to take that form of obligation. It is defined to 
be ^^ an obligation of record entered into before a Court, 
or officer duly authorized for that purposey with a con- 
dition to do some act required by law, which is therein 
apecified." 2 BI. Com., 341; 1 Chjt. Cr. L., 90. 

We say, then, that a justice of the peace is an 
officer duly authorized by law, and that the act of 1715, 
ch. 16, § 1, confers that authority. 

A sheriff is not a ^^ Court of Record/' and yet he 
is authorized by the very words of the law to take a 
recognizance in certain cases. See act 1809, ch. 6, § 2, 
C. k N., 119. 

But let us look at the reason of the thing, and see 
what magic there is in the terms "Court of Record," 
as used in this connection. What is the object of the 
record? Sitoply to preserve the evidence of the obligi^ 
tion. Why then is it more necessary to preserve the 
evidence of a recognizance than an ordinary bail bond 
in the common form ? Are not both, in effect, precisely 
the same ? Is not the only difference that one is signed 
by the justice and the other by the cognizor? And 
yet it is conceded that a justice may take a valid bail 
bond. 

But we say that, aside from the act of 1715, and 
all other legislation upon the subject, this is not an 
open question in this State. It is true that the court 
of a justice is not a Court of Record; but the moment 
hn files a recognizance taken by him in the Circuit 



284 NASHVILLE : 



Francis H. Pugfa et al. v. The State. 



Court, it acquires the " dignity and verity " of a record. 
And, without further elaboration, this Court has, on two 
occasions at least, recognized the validity of a recog- 
nizance when taken by that oflSicer. Barkley v. States 
Meigs' R. 93 ; State v. Clierry^ lb., 232 ; and Arledge 
v. State^ 2 Sneed, 229. 

We insist, therefore, that the State is entitled to 
final judgment in this case. 



McKlNNEY, J., delivered the opinion of the Court. 

Francis H. Pugh was arrested on a warrant issued 
by a justice, for the murder of J. P. Thompson, and 
was bound over to the Circuit Court of Giles to answer 
the charge. The plaintiffs in error entered into a 
recognizance in the sum of $3,000, jointly and severally, 
for the appearance of the prisoner on the second Mon- 
day of the December Term of said Court, 1856. 

The prisoner failing to appear, a forfeiture was en- 
tered against him and his bail, upon the recognizance; 
and scire facias having been served on the bail, severally, 
they appeared and demurred. The demurrer was over- 
ruled, and final judgment rendered against them. From 
this judgment the bail have prosecuted a writ of error 
to this Court. 

The first error assigned is, that a justice of the 
peace, by our law, has no legal authority to take a 
recognizance; and that, consequently, the entire proceed- 
ings are null, and of no effect. 

The authority of a justice to take a recognizance, 



DECEMBER TERM, 1858. 285 

Francis H. Pugh et aU v. The State. 

seems to have been, always, tacitly conceded by our 
Courts from the earliest period of our judicial history. 
Numerous cases, necessarily involving the question, are to 
be found in our books — in none of which, r.or, indeed, 
so far, as we are aware, in any case before the present, 
was any point made as to the power of the magistrate 
to take bail in this form. If the question of power 
were a doubtful one, so long and universal an acquies- 
cence in its exercise ought alone, perhaps, to be now held 
sufficient to have conclusively settled it. But we do not 
regard it as a doubtful question. We think it clear that 
the power exists by statutory enactments. 

By the act of 1715, ch. 16, § 1, in all criminal 
offences that are bailable by law, the committing magis- 
trate is required to " admit the party to bail." The 
act is silent as to the manner or form in which bail 
shall be taken, whether by bond or recognizance, for the 
appearance of the prisoner before the Court to which he 
is bound. But the same section makes it the duty of 
the magistrate to bind over the prosecutor and witnesses 
for the State, likewise, to appear at the Court to which 
the prisoner is bound; and in express terms prescribes 
the manner in which they shall be bound, namely, by 
" recognizance, with good and sufficient securities." The 
power being thus expressly given to take a recognizance 
from the prosecutor and witnesses, it would seem absurd 
to deny the authority to take a recognizance from the 
party accused. 

There is certainly some plausibility in the suggestion, 
that, in some of our statutory enactments, the term 
" recognizance " has been used without regard to its 
strict legal import, and as obviously meaning a londy 



236 NASHVILLE : 



Francis H. Pugh et al, v. The State. 



rather than a recognizance properly so called ; as in the 
act of 1805, ch. 37, § 1, which directs the sheriff, on ex- 
ecuting a capias on an indictment, to take a recognizance 
for the appearance of the defendant; and so in other 
instances that might be mentioned. But notwithstanding 
this apparently loose use of the term in some instances, 
we are not prepared to admit that, in the act of 1715, 
it was not used, and intended to be understood, in its 
proper legal sense. 

The strongest argument against the power of the 
justice, is the app}«.rent incongruity of holding that a 
magistrate, whose court is not a Court oj Record^ may 
take an obligation, the legal efficacy of which depends 
upon the fact of its being made of record. 

It is true that, in its technical sense, a recognizance 
"is an obligation of record entered into before a Court, 
or officer duly authorized for that purpose." 2 Bl. Com., 
341 ; 1 Chitty's C. L., 90. But then, in the nature of 
things, there is no legal incongruity, or absurdity, in dele- 
gating the power to take bail, in this form of obligation, 
to a ministerial officer, or to a magistrate clothed with 
judicial power, though his Court be not a Court of Rec- 
ord. It is a matter of positive law, resting in the dis- 
cretion of the Legislature, by whose will, a magistrate 
or officer, either judicial or ministerial, may, for a par- 
ticular purpose, be invested with a power more properly 
appertaining to a Court of Record. 

The manner of taking bail, in itself considered, is 
not very important; whether the obligation be in the 
form of a bond executed by the parties; or a recogni- 
zance, which need not be signed by the parties, the 
acknowledgment beiog reduced to writing by the magis* 



DECEMBER TERM, 1858. 28T 

Francis H. Pngh ei al. v. The State. 

trate, and attested by him, is merely a matter of form* 
But the legal consequences of these obligations are, in 
some respects, very different; and it is in view of these 
differences that the question derives all its importance. 

It was settled by this Court, in the case of Barhley 
V. St ate J Meig*s Rep., 93, that a recognizance taken by 
a magistrate when filed in the Circuit Court, becomes a 
part of the record of the proceeding in that Court, and 
is thereby invested with the dignity and verity which, 
by law, appertain to records; so that the party is pre- 
cluded from availing himself of the plea of non eH factum 
to such recognizance. 

Again : A recognizance forms a direct and specific 
lien upon all the lands owned by the party at the time 
of its acknowledgment, or afterwards acquired by him. 
This is unquestionably so, of a recognizance entered into 
in a Court of Record, as held by this Court in the 
case of The State v. Winn, 8 Sneed, 898. And from the 
force and effect attributed to a magistrate's recognizance, 
upon its return into a Court of Record, in Barkley r. 
The State; the legal consequence, as respects the lien, 
must necessarily be the same; whether the lien in the 
latter case shall be held to attach, only, upon the return 
of the recognizance into Court; or, by relation, from its 
date, is a question upon which we need express no 
opinion at present. 

The next error insisted on, is, that the judgment 
msft is defective, in omitting to show that the recogni- 
sance was returned into the Circuit Court of Giles. This 
fact, it is true, is not expressly stated in the judgment, 
bat it is stated that it appeared to the Court that such 
a recogniznce (the substance of which is recited in the 



238 NASHVILLE : 



Francis H. Pugh et al. v. The State. 



judgment) had been entered into before the committing 
magistrates; and this, we think, is sufficient. From the 
statement, that it "appeared to the Court" that such a 
recognizance had been taken, it must be held, by neces- 
sary implication, that it had been returned, and was 
present before the Court when the judgment was en- 
tered, for the fact of its existence could not otherwise 
have appeared to the Court. The case of The State v. 
Arledge, 2 Sneed, 229, does not support this objection 
to the interlocutory judgment. 

The third error relied on, is, that the forfeiture was 
entered on the 19 th day of December, 1866, and the 
scire facias does not show that the day of the forfeiture 
was the second Monday^ or a day subsequent thereto, of 
the December Term of the Court; and, therefore, it is 
argued it does not appear that the forfeiture was regu- 
larly entered. This objection is not well founded. 

It is well settled, that the Courts will take judicial 
notice of the terms of the several Courts within the ter- 
ritorial limits of the State, and the days on which the 
terms commence. By this means we learn that the day 
on which the forfeiture was taken, was a day subsequent 
to the "second Monday" of the term to which the 
prisoner was recognized to appear. This is sufficient. 
Matters of which the Courts will take judicial notice 
need not, generally, be averred in pleading. 

The fourth error alleged, is, that it does not appear^ 
from the magistrate's proceedings, as recited in the scire 
facias^ that the prisoner was adjudged guilty, by the 
justices, of the offence charged ; without which, it is ar- 
gued, they had no power to bind him over to answer 
said charge. This is a mistaken conclusion. No formal 



DECEMBER TERM, 1868. 239 



J. W. Gee ei al. v. H. Graves and Wife. 



judgment of the guilt of the accused, hy the committing 
magistrate, is required. The adjudication, that the party 
shall stand committed, or give bail for his appearance 
to answer the charge before the tribunal having cogni- 
zance of the offence, is a sufficient performance of the 
duty imposed by law on the examining magistrate. More 
than this, on his part, would be nugatory. 

The result is, that there is no error in the record, 
and the judgment is affirmed. 



J. W. Gee et al v. H. Graves and Wife. 

1. Will. Oonsiruction. Power of executor to aeU property bequeathed. 
The testator directed that his property, both real and peisonal, should 
be kept together and masnged by his executor for the benefit of his 
wife, during her widowhood, and the maintenance and education of 
his children ; but in case his wife married, she was to have the use 
and enjoyment of certain of the property during her natural life, and 
at her death, the same to be sold and equally divided between his, the 
testator's, children. The widow remained single, and, at her death, 
the executor sold and conveyed one of the slaves mentioned in the 
will. It is held, that the testator did not intend that his executor 
should sell any of his estate unless his wife married again, and the 
sale of the slave by him, was unauthorized and void, and communi- 
cated no title to the purchaser. 

2. Slates. Hire. Compensation for keeping^ wlien allowed, A party 
who purchases slaves from an executor who sells without authority, 
is a wrong-doer, and is not entitled to compensation for the support 
and raising of the slaves, and for physician's bills, taxes, &c., beyond 
the hire. And this relief is al^orded him incidentally, by allowing him 
to recoup against the claim for hire. 

8. PowiR. Referred to in the instrument executing it. Question re- 
served. The rule, according to the weight of authority, seems to be, 
that although it is not necessary to the due execution of a power, that 



HO m 



246 NASHVILLE : 



J. W. Geo et ol. v, H. Graves and Wife. 



it should be recited or expressly referred to, yet, there must be some- 
thing to show that the party intended to execute it. But since the act 
of 1827, an executor has no power to sell slaves under the will, unless 
the power is conferred therein ; and it is difficult to see, if this power 
is conferred, wly, an absolute bill of sale, without reference to the 
power, is not a good execution of it. But the question is reserved. 



FROM DAVIDSON. 



This cause was heard at the November Term, 1858, 
before Chancellor Fribkson, who pronounced a decree 
for the complainants. The defendants appealed. 

. R. J. Meigs, for the complainants. 

John Rbid, for the defendants. 

Wright, J., delivered the opinion of the Court. 

The complainants are the children and legatees of Wil- 
liam W. Gee, who died in the year 1839; and file this 
bill to recover a slave Harriet, the properly of their 
father at his death, and her increase. 

These slaves, at the filing of the bill, were in pos- 
session of the defendant. Graves, who, about the year 
1852, married Susan, the daughter of William Harris, 
and by the marriage, acquired Harriet and her ehild 
Houston, and, perhaps, others of her children. And cer- 
tain other children of Harriet were born in his posses- 
sion. 

William Harris, in 1847, willed Harriet and Houston 
to his said daughter. He bad purchased Harriet, on th« 



DECEMBER TERM, 1858. 241 

J. W. Gee et al. v. H. Graves and Wife. 

11th of September, 1840, of J. C. Gee, the executor 
of William W. Gee, by a bill of sale, as follows : 

*' Received of Wm. Harris, five hundred and twenty- 
five dollars for a negro girl named Harriet, aged twenty- 
one or two years, wLicli I warrant to be sound, both in 
body and mind ; and forever warrant the title of said 
gir) to be a slave for life. This 11th of September, 
1840. J. C. GEE." 

It is contended by the counsel of Graves, that J. 
G. Gee had authority to make this sale under the will 
of William W. Gee; and that William Harris, upon the 
execution of the bill of sale, acquired a valid title to 
Harriet. 

This is denied by the complainants. 

The clause of the will under which the authority is 
claimed, is as follows: 

"It is my will and desire that all my property, 
both real and personal, be kept together, and managed 
and controlled by my executor, for the use and benefit 
of my wife Mary, during her widowhood, and the main- 
tenance and education of my children. And, in case my 
wife marry again, she is to have no use or benefit of 
my estate, but as follows, to-wit: I will and devise 
that she shall have and enjoy the rents, profits and in- 
crease of my tract of land in Wilson county, that I 
purchased of John Doke ; my negro woman Harriet ; my 
household and kitchen furniture; my barouche and mare; 
all which she is to use and enjoy during her natural 
life. 

''At the death of my wife, the said last property, 

last mentioned, to be sold, and the same to be equally 

divided between my children, with this exception, that 
16 



a42 NASHVILLE : 



J. W. Gke et al. v, H. Gr&Tes and Wife. 



my son James Gee, when he comes of age, shall have 
to him and his heirs forever, one hundred acres of the 
said land that I purchased of John Doke, lying in Wil- 
son county, to be laid off and apportioned at the dis- 
cretion of my executor, and no other person. When my 
youngest child shall come of age, all my property, both 
real and personal, not herein given or bequeathed, is to 
be divided equally, that is, share and share alike, among 
and between my children. I hereby nominate and ap- 
point my brother, Joseph C. Gee, executor of this my last 
will and testament, no security required of him.'' 

The widow of the testator never again married, and 
died within a month after his death, leaving their chil- 
dren all infants of tender years. 

Joseph G. Gee qualified as executor, and took upon 
himself the execution of the trusts of the will. 

The first impression entertained by us upon reading 
this record, was, that Joseph G. Gee, as the executor 
of William W. Gee, under this will, did have the power 
to sell the slave Harjriet, but that he had failed to exe- 
cute it, so as to communicate to Harris, the purchaser, 
any title. And it is argued for the complainants, that 
conceding the power to exist, still the bill of sale, upon 
this latter ground alone, must be held wholly inopera- 
tive, because it contains no words indicating an inten- 
tion to exercise the power; but, on the contrary, ap- 
pears to be the individual and personal conveyance of 
Joseph 0. Gee. 

The rule, according to the weight of authority, seems 
to be, that although it is not necessary to the due exe- 
cution of a power, that it should be recited or expressly 
referred to, yet there must be something to show that 



DECEMBER TERM, 1858. SMS 



J. W. Gee et al. v. U. Graves and Wife. 



the party intended to execute it. Probest v. Morgan^ 1 
Atk., 440 ; Motion v. Sutchinsony do., 558 ; Ux Parte 
Castvellj do., 569 ; Andrews v. Hmmetty 2 Bro. C. C, 
297 ; Bennett v. Abrenon^ 8 Ves., 609 ; Sugden on Pow- 
ers, 284. And this intention becomes manifest by such 
description or notice of the estate or property, the sub- 
ject matter of the power, in the conveyance, as shows 
that it includes something the party had not otherwise 
than under this power ; and the conveyance would be 
wholly inoperative, unless applied to the power, ^x- 
Parte Caswell^ 1 Atk., 659; Bennett v. Abrenon^ 8 Ves., 
615; Sugden, 282 to 294; Bradish v. CUbbSy 8 Johns. 
Gh. Rep., 651. Now it is palpable, that under the law 
of Tennessee, since the act of 1827, ch. 61, this bill of 
sale can be good in no other way than by virtue of the 
power in the will of William W. Gee. And if the 
power existed at all, it is difficult to see why this is 
not a good execution of it. But we do not mean to 
decide this now, it not being necessary to the determi- 
nation of this cause, and because it is held in very re- 
spectable authorities that this principle has never been 
supposed applicable to the conveyances made by execu- 
tors and administrators. Oriswold v. BigeloWy 6 Con. 
Rep., 258; Lockwood v. Sturdevantj do., 378. 

It is enough, that upon a critical examination of this 
will, we think the executor had no power to make the 
sale. Its meaning is not exactly clear. But we take 
it, upon the entire instrument, that the testator did not 
intend that his executor should sell any of his estate, 
unless his wife should marry again ; in which event she 
was to have certain property, including the slave Har- 



244 NASHVILLE: 



J. W. Gee et al. v. H. Graves and Wife. 



riet, set apart to her for her natural life ; and at her 
death, the same, except the 100 acres of land which 
was to be laid off to his son James, was to be sold by 
his executor, and the proceeds divided among his chil- 
dren. Why was this particular property, and not the 
entire estate, to be sold? Evidently, because he con- 
templated that his wife might marry again, and still be 
alive when his youngest child should come of age, at 
which time all his estate, except what is given to his 
wife for life and to James, was to be divided, equally, 
among his children; but that given to his wife was not 
then to be divided, but was to await the event of her 
death, and then to be sold, and the proceeds equally 
divided among his children. No property is to be as- 
signed to the widow, separately, unless she marries, and 
it is only the property that is assigned to her sepa- 
rately, in case of her marriage, that is to be sold. In 
this case no property was ever so assigned, because she 
died still living single, and so the case tor assigning 
her property, separately, never arose; and, in like man- 
ner, the case for a sale never arose, and the power to 
sell never existed. 

The controlling intention of this will is, that if the 
testator's widow does not marry, his property, the prop- 
erty itself real and personal, is to be kept together for 
the use and benefit of his wife and the maintenance 
and education of his children, and not sold ; and at the 
proper time divided among his children. Now that the 
widow has died, single, there can be no possible reason 
or purpose for the sale of Harriet and the land, the 
furniture, barouche and mare. On the contrary, we 



DECEMBER TERM, 1858. 245 



J. W. Qee et al, r. H. Graves and "Wife. 



think the general intention of the will is against the 
exercise of any such power. 4 Term Rep., 87 ; Jackson 
V. Veeder^ 11 Johns. Rep., 169. 

The only remaining question is, as to the compensa- 
tion claimed by Graves for keeping and raising the 
slaves while in his possession. Can this be allowed to 
exceed the value of their hires during the same period? 
We think not. 

However innocent, in fact, he may be; in law, he 
can be viewed in no other light than as a wrong doer, 
who has intermeddled with the property of complainants 
without authority, and without their consent ; and we 
know of no principle that entitles him to relief in such 
a case, beyond the hires. And this is afforded him in- 
directly^ by allowing him to recoup against the claim 
of complainants, to that extent.. 

In the authorities to which we have been referred, 
by the counsel on both sides of the question, the rule 
seems never to have gone further than that, in the esti- 
mation of the amount co be paid for hire, the defend- 
ants should have credit for the support and raising of 
any of the slaves not worth their maintenance, and for 
physician's bills, taxes, &c., if any, to be deducted from 
the hires. Fenwick v. Macey's EzWsy 1 Dana, 286 ; 
Newell V. Newell et aly 9 Smedes & Marshall's Rep , 70 ; 
Rhodes v. Hooper^ 6 Lou. An. Rep., 357. 

The rule in this State, as to lands held under like 
circumjtances as these slaves, is, that the defendant 
shall be allowed to recoup for any permanent and valu- 
able improvements he may have made, so that such al- 
lowances do not exceed the rents and profits for which 



246 NASHVILLE : 



J. H. Conner v. James and Jefferson Crunk. 



he is chargeable. Jone% v. Perry^ 10 Yer., 69 ; McKin- 
ly V. Sollidai/j do., 477. 

The Chancellor took this view of the case, and we 
affirm his decree. 



J. M. Conner v. James and Jefferson Crunk. 



1. Slates. Warranty. Fraud. Tender. Jieacission of contract. If, 
upon the sale of a slave, a warranty is made, and the vendor is at- 
tempted to be made liable upon the ground of fraud or deceit, for de- 
fects covered by said warranty, to authorize a recovery it must be 
shown that the vendee returned, or tendered the slave to the vendor 
in a reasonable lime, or was prevented from doing so by the death of 
the slave. 

2. Samk. Same. Same. Same. Rule confined to cases of warranty. 
This rule is confined to cases where there is a contract of warranty 
which covers the defects upon which the suit is based. But if redress 
is sought against a party, upon the ground of fraud, who has made 
no warranty, or for a fraud not covered by the warranty, the princi- 
ple does not apply, and a tender of the slave Is not necessary to enti- 
tle the vendee to recover for the fraud and deceit. 



FROM BEDFORD. 



Verdict and judgment for the defendant, at the De- 
cember Term, 1858, Davidson, J., presiding. The plain- 
tiff appealed. 

Buchanan, Keeble and Burton, for the plaintiff. 

Cooper and Wisbnbr, for the defendants. 



DECEMBER TERM, 1858. 247 



J. M. Conner v» James and Jefferson Crunk. 



Garuthers, J.y delivered the opinion of the Court. 

On the 27th of December* 1854, the defendant, Jeffer- 

son, sold to the plaintiff, at Courtland, Alabama, two 
slaves; Lucretia, about 25 years old, and her son, Jor- 
dan, about six, for ^H^O) Ai^d executed his bill of sale 
warranting title and soundness. 

The negro woman died in a very short time — but a 
few days after the purchase. This action is brought 
against the defendants upon the ground of deceit and 
fraudulent concealment of unsoundness known to them at 
the time. 

The second count charges that the defendant James, 
being the owner of said slaves, and well knowing the 
said Lucretia to be unsound and worthless, sent her to 
Alabama by his brother, the said Jefferson, who was in- 
solvent, to be sold, and under this combination and 
fraudulent contrivance they were sold, and a bill of sale 
made by the latter in his own name. 

It is fully and clearly proved that they were bought 
by James, who was a physician himself, at a low price, 
as unsound. This is proved by his vendor. Dr. Burdett, 
who says they were very delicate; that he purchased 
them as ^' unsound property," and sold them with a full 
disclosure of that fact, about the 1st of December, 1854, 
for 9600. The defendant, James, told witness, McMahon, 
before he bought them, and after, that he knew they were 
diseased, but that ''he could make something on them by 
patching them up." Afterwards he told the same wit- 
ness, and others, that *' he had sent them to Alabama 
by his brother Jeff., and Jeff, had sold them." On 
being asked if he was not afraid they would come on 



246 NASHVILLE : 



J. M. Conner v, James and Jefferson Crunk. 



him for damages, he said, ^' he was not, that he was 
not known in the bill of sale, that Jeff, had given it, 
and he was irresponsible." He boasted that he had 
made from five to seven hundred dollars upon the ne- 
groes. 

There was some proof made by defendants, to the 
effect, that one Bobo was a partner in the purchase 
from Burdett, and that he sold out his interest to Jeff., 
and that the latter was not, in fact, insolvent. But this 
does not vary the case. 

Dr. Crunk is the main actor in the fraudulent con- 
trivance to impose upon some distant purchaser who 
might be ignorant of the diseased condition of the woman, 
and for that, he, and his brother whom he engaged to 
carry out his scheme, are sued. A case for recovery of 
full damages is made out against them, unless they are 
protected by some technical rule in their favor. 

It is supposed that the principle of Mosson v. Han- 
cock, 3 Sneed, 436, must defeat this action for want of 
a return, or offer to return the slaves, in a reasonable 
time. That case recognized and applied the principle, 
that where there is a warranty made by the defendant, 
who is attempted to be made liable upon the ground 
of fraud or deceit in relation to defects which are cov- 
ered by an express warranty, that it must be shown 
that the property has been returned, or offered to the 
vendor, in a reasonable time. That is, if the contract 
of warranty is abandoned, and a rescission claimed for 
fraud, and the suit is for that, and not on the contract, 
the plaintiff must show, as a condition precedent to re- 
covery, that he has proposed to rescind by tendering 
back the property. Yet, if the unsound slave should 



DECEMBER TERM, 1858. 249 



J. M. CoDner v. James and Jefferson Crunk. 



■die within the reasonable time, that would excuse the 
return and remove the diflBculty. 

But that is not this case by any means, even if 
the slave had not died. That rule is expressly confined 
to cases where there is a contract of warranty against 
the same defects, upon which the suit may be brought, 
instead of the fraud, at the election of the plaintiff. 

But if redress is sought against a party upon the 
ground of fraud, who has made no warranty, the diflB- 
culty is out of the way, and a tender of the property 
unnecessary, as a prerequisite. This is a case of that 
kind. James Crunk has not only failed to sign any bill 
of sale or written contract, but expressly and avowedly 
avoided it to escape liability and perpetrate a fraud 
upon an innocent stranger, for which he thought there 
would be no redress, because of the insolvency of the 
agent selected to assume the ownership and make title, 
with covenants. 

There is no contract with him, in writing or other- 
wise, to sue upon, or rescind, but he is sued for fraud 
and deceit. Jt is no defence to him, that his brother 
is included in the action, and has otherwise boui.d him- 
self. They are both liable, to be sure, but each is, 
separately, as well as jointly, responsible for the wrong. 

We think his Honor erred in applying the principle 
of the case of Rosson v. Hancock^ if the charge is to 
be so understood, as we think it was by the jury. But 
this was with reference to the first count, and properly 
qualified, by stating that the death of the slave within a 
reasonable time would excuse the tender. The Court, in 
that part of the charge which related to the damages, 
laid down the law correctly, to be, that where the sale 



250 NASHVILLE : 



J. M. Conner v. Jtimes and Jefferson Crunk. 



was for a gross sum for both slaves, they must ascer- 
tain from the circumstances, what amount was allowed 
for the one proved and known to be unsound, and ren- 
der their verdict for that alone, with interest. The 
whole charge, when properly understood, is, perhaps, sub- 
stantially correct. But the verdict for defendants must 
have been produced by the closing remark of the Judge 
upon the request of defendant's counsel to instruct the 
jury to the effect that, upon a sale in gross, the plain- 
tiff could not elect to keep the boy, Jordan, and re- 
cover for Lucretia, and that a suit could not be main- 
tained for either on the ground of fraud, without a ten- 
der of both, or a sufficient excuse as to both. The 
Court refused to give this instruction, upon the express 
ground that he had so charged befcre. So the jury 
received that as the law, and of course were bound to 
render their verdict for defendants, as it was not pre- 
tended that Jordan had been returned, or offered to be. 
We think the Court had not so charged before, but the 
jury did not of course hesitate to act upon his Honor's 
construction of what he had laid down to be the law. 
There is no other way to account for the verdict, for 
surely a case had never been more fully made out. It 
was easy, from the evidence, to ascertain what had been 
given for the woman, as there was proof as to the 
value of the boy, as well as the woman, at the time 
of the sale. 

There is no fraud imputed as to the boy, he having 
been bought and retained as sound ; but the complaint 
is alone as to the mother. For the fraud in relation 
to her alone, the suit was brought, and the Court had 
correctly held, that if the proof was such as to enable 



DECEMBER TERM, 1868. 261 



John W. Allison v. £11 H. Stephens et al. 



the jury to ascertain what was the price given for her; 
the plaintiffs were entitled to a verdict for that, with 
interest. But then, when he afterwards said that could 
not he done, unless he had offered to return the boy, 
that ended the case. This was not one of the kind of 
cases where severance cannot be made of the property 
purchased. 

We think this error was fatal to the plaintiff, and for 
it reverse the judgment. 



John W. Allison v. Eli H. Stephens et. al 



Costs. lAahiliiy of surely in the Chancery Court. In a Court of 
Equity, where it is in the power of the Chancellor to award costs 
against either party without regard to the result of the suit, a person 
becoming security for costs undertakes with reference to that discre- 
tionary power, and is subject to its exercise whether his principal suc- 
ceeds or not. And a bond conditioned that the complainant ** shall 
successfully profeeeute a bill of complaint this day filed by him," &c., 
**or pay all costs incident on failure thereof,'* will bind the surety for 
the costs, although his principal may succeed in the suit, if taxed to 
him by the Court. 



FROM BEDFORD. 



The final decree, in this cause, was made hj Chan- 
cellor Ridley, at the August Term, 1867. For the 
reasons stated in the opinion of the Court, the surety 
of the complainant appealed. 



252 NASHVILLE : 



John W. Allison v. Eli H. Stevens et aL 



Caruthers, J., delivered the opinion of the Court. 

This is an appeal from a decree for costs o gainst a 
security for the prosecution of a suit in equity. 

John W. Allison filed his bill in the Chancery Court 
at Shelbyville, against Eli H. Stephens and others, and 
R. B. Davidson signed the bond for costs. The condi- 
tion is, "that J. W. Allison shall successfully prosecute 
a bill of complaint this day filed by him * * against 
Fisher & Stephens, or pay all costs incident on failure 
thereof.'* 

This bill related, exclusively, to a partnership in the 
purchase and sale of a drove of mules/ The defend- 
ants filed a cross-bill for discovery in that controversy, 
and also bringing up another transaction in relation to 
a joint purchase and sale of a lot of hogs, being a 
matter disconnected with the other. 

An account was taken in reference to both transac- 
tions, and the result was thac complainant obtained a 
decree for §76.50. 'But the Court taxed the complain- 
ant in the original bill, and his surety with half the 
whole costs. 

The surety appealed, and insists that he was not 
liable under his bond 'for any costs, because his princi- 
pal did *' successfully prosecute his suit " according to 
the terms of his bond, and by which he was only to be 
liable for costs in case of failure, on his part, to do so 
successfullv. 

That argument would be sound, upon a bond for cost, 
in a Court of Law, where the costs are, by express 
statutory provision, to go with the cause, and necessa- 
rily fall upon the failing party. But in equity, where 



DECEMBER TERM, 1858. 253 



Elijah Hopper v. David Fisher. 



it is in the power of the Chancellor to award costs 
against either party, without regard to the result of the 
suit, a person becoming surety for costs undertakes with 
reference to that discretionary power, and is subject to 
its exercise whether his principal succeeds or not This 
bond is in the ordinary form, and the obligation incur- 
red by it renders the surety liable to the order of the 
Court in regard to costs, though the party for which ho 
was bound may have obtained a decree for the full 
amount he claimed in his bill. 
Affirm the decree. 



Elijah Hopper v. David Fisher. 

1- CotTBT, Chancery. Js a Superior Court A Court of Chancery is 
a Superior Court within the sense and meaning of the term, as contra- 
distinguished from an inferior one, and the validity oi its decrees is 
not to be tested by the rules applicable to a Court of peculiar, special, 
and limited jurisdiction. 

2. Jurisdiction. Rule fort <w to Superior and Inferior CourU, The 
rule for jurisdiction is, that nothing shall be intended to be out of the 
Jurisdiction of a Superior Court but that which specially appears to be 
so ; and, on the contrary, nothing shall be intended to be within the 
jurisdiction of an Inferior Court but that which is so expressly alleged. 

3. Chancsrt Jurisdiction. Partition, A Chancery Court has gen- 
eral power and authority to make partition of landb between tenants 
in common. This Jurisdiction existed at the common law, and has 
since been declared and recognized by several statutory enactments. 

4. Same. Same. Ejeetment, Decree^ when collaterally attacked. If it 
appears that the Chancery Court, whose decrees are impeached in a 
collateral proceeding by ejectment, had Jurisdiction over the subject 
matter of the decrees, and undertook to, and did declare the rights of 
the parties, there being infant defendants, who were represented by a 



254 NASHVILLE : 



Elijah Hopper v. David Fisher. 



guardian ad litem, it will be presumed that the defendants were duly 
served with process, or in some way had the proper notice, so as to 
give the Court Jurisdiction of their persons ; and the decrees will be 
held good, although it may not appear in the transcript of the record 
offered as evidence in the suit in ejectment, that the infant defendants 
were served with process, or had any notice of the proceedings, or that 
a guardian ad liie>n was appointed bj order of the Court. 



FROM DEKALB. 



This cause was heard before his honor, Judge Good- 
all, at the April Term, 1858. A transcript of the 
record^of partition, from the Chancery Court at McMinn- 
ville, was offered as evidence. It was objected to upon 
the grounds stated in the opinion of the Court, and the 
objection overruled. Verdict and judgment for the plain- 
tiff. The defendant appealed. 

S. M. FiTE, for the plaintiff in error, cited and com- 
mented upon Robertson v. Robertson^ 2 Swan, 197 ; 
Douglass v. Harrison^ 2 Sneed, 382; Act of 1851-62. 

M. M. Brien, for the defendant in error relied on 
the following authorities to sustain the Court below: 
Simmons v. Woods, 6 Yer., 518; 1 Greenl. Ev., § 19; 
Kilcrease v. Blythe, 6 Hum., 389; Thacher v. Chalmers, 
5 Ham., 313 ; Robertson v. Robertson, 2 Swan, 197. 

R. Cantrell, on the same side, cited, in addition, 
the Act of 1852, ch. 152, § 6; Morris v. Richardson 
et at, 11 Hum., 389; Greenlaw v. KemaJian, 4 Sneed, 
371. 



DECEMBER TERM, 1858. 256 



Elijah Hopper v. David Fi&her. 



Wright, J., delivered the opinion of the Court. 

This was an action of ejectment, in the Circuit 
Court of DeKalb county, in which the plaintiff below 
had judgment, and the defendant has appealed in error 
to this Court. 

In deraigning his title the plaintiff was compelled to 
use and rely upon certain decrees and proceedings had 
in the Chancery Court at McMinnville, to the reading 
of which the defendant objected ; but the Circuit Court 
overruled the objection, and permitted the records to be 
read as a part of the plaintiff's title. 

This is now assigned as error. 

The land in controversy had been granted by the 
State of Tennessee to Thomas Hopkins. He died in- 
testate, leaving a large estate in lands, in various tracts. 
His heirs-at-law, after his death, in the year 1838, by 
a decree in the Chancery Court at McMinnville, had 
partition made of these lands, and the tract in contro- 
versy, with others, was allotted to the heirs of Judith 
Yaughan, a sister of the intestate. 

In the same year, and the year following, the chil- 
dren and heirs of Judith Yaughan, by a decree in the 
same Court, had partition made of the lands which had 
been allotted to them, and the tract of land in dispute 
was a88ignt;d to Thomas C. Yaughan, one of the children 
and heirs of Judith Yaughan. 

In the bills and proceedings in both of these causes, 
certain of the heirs, who then appear to have been 
infants, were made defendants ; and in the transcripts of 
the records used on the trial of this cause, no subpoenas 
were found, nor does it appear whether or not any 



256 NASHVILLE : 



1'> 



Elijah Hopper v, David Fisher. 



ever issued or existed, or whether said infant defendants 
were ever served with process, or had notice by publi- 
cation or otherwise, as required by law. As to this the 
records are silent. Nor is any order appointing a guar- 
dian ad litem found; and in one of the transcripts the 
answer of the guardian ad litem does not appear. 

But in the decrees, in both cases, it is recited that 
the causes "came on to be heard, and were heard, before 
the Chancellor, upon the bill and answer of the minor 
defendants, by their guardian ad litem^ John D. Lusk, 
when it appearing to the satisfaction of the Court,'* &c. : 
and after stating in the decree the rights and equities of 
the parties, the Court goes on and decrees the partition. 

It is assumed that these decrees are now to be held 
void for the want of service of process upon these infant 
defendants. 

The defendant, so far as we can see, is a trespasser^ 
and has no interest in the land in dispute; and whether 
these decrees were, at the time they were made, formal 
and regular, in no way concerned him. The heirs them- 
selves do not complain, but have acquiesced in these 
divisions for nearly, or quite twenty years. 

The defendant seeks to attack and overturn them 
collaterally, in order to hold the possession of a tract 
of land to which he manifestly has no title. 

We are of opinion this should not be permitted, and 
that, as to him, these decrees should be held valid, 

A Court of Chancery is a Superior Court within the 
sense and meaning of the term, as contradistinguished 
from {i[| Inferior Court. It has general power ajid au- 
i / ,*jbhoi{ity if> make partition of lands between tenants in 
^^ ^onvn^on.^ This jurisdiction existed at the common law, 



DECEMBER TERM, 1858. 257 



Slijfth Hopper v. David Fisher. 



and has been declared and recognized by many statutee 
since. It can in no just sense be claimed that the 
validity of these decrees shall be tested by the rules 
applicable to a Court of peculiar, special, and limited 
authority. 

When we see, therefore, that the Court of Chancery 
at McMinnvillo had jurisdiction over the subject matter 
of these decrees, and undertook to, and did declare the 
fights of the parties — the infant defendants being repre- 
sented by their guardian ad litem — we should now, in 
a mere collateral attempt to impeach them— especially 
after such lapse of time — ^presume that the defendants 
were duly served with process, or in some way had the 
proper notice, so as to give the Court jurisdiction of 
their persons. 

The subpoenas in a cause are not required to be 
enrolled, and may not be, if they were; and they, with 
the evidence of notice to bring parties before the Court, 
may be, and often are, lost and cannot be copied into 
the transcript. And are we now, in a case like this, 
to say there were no subpoenas, or service, or notice of 
any kind? 

The rule for jurisdiction, as laid down in Peacock v. 
BeU and Kendal^ 1 Saund. R., 74, is, that nothing shall 
be intended to be out of the jurisdiction of a Superior 
Court but that which specially appears to be so ; and, 
on the contrary, nothing shall be intended to be within 
the jurisdiction of an Inferior Court but that which is 
so expressly alleged. 

This rule was adopted by Judge Reese, in dji^enns*^ ^^TH 
the opinion of the Court in the cases of Brien» J^ki^'ri^J^ ^ 
V. Hart J and Kilerease v. Blythe^ 6 Hum., jPl^SiT&i^i ^ 
17 \ 1> ^^ ?' 



258 NASHVILLE : 



Elijah Hopper v. David Fisher. 



And from these cases it will al^o appear that a Court 
of Chancery is a Superior Court within the sense of 
the rule. 

The case of Kilcrease v. Blythe^ involyed a ques- 
tion of jurisdiction as to the person of infant heirs, and, 
in principle, seems to me to be very analogous to the 
present case. 

From that case it would seem, that where, on the 
return of process not found, and affidavit of non-residence 
made, with prayer for the action of the Court to compel 
the appearance of the defendants, and the record only 
shows that the Court proceeded to take the bill for 
confessed, and determined the matter involved without 
setling forth that this was done after due publication^ 
such decreCj though reversible on appeal, is not void. 
6 Hum., 378. And, on the same subject, Whit£ v. 
Albertsonj 3 Dev., 242; Brown et al. v. Woody 17 
Mass., 72; Britain v. Cowen, 5 Hum., 318, 319; 1 
Greenl. Ev., § 19. 

We do not mean to question the rule that requires 
service or notice upon the' parties, and that a decree 
taken contrary to the course of the Court is void. 1 
Swan, 484; 2 Swan, 197; 3 Dev., 244. 

But we take certain things in this case as evidence 
that the parties to these decrees were properly before 
the Court, and that all things were rightfully done* 

Judge Resse, in Britain v. Cowen^ 5 Hum., 318, 
319, after speaking of the struggles of the Chancery 
Court against technical rules, and of its power, from its 
mode of practice, to see, from time to time, that neces- 
sary parties are brought before it, and of the crade and 
inartificial manner in which much of the public business 



DECEMBER TERM, 1858. 2d9 



E. A. Coleman, by &c , v. Joseph Satterfleld, et al. 



is done, and how incautiously the papers and records 
pertaining to our Courts are kept, remarks: '^We hare 
strong motives of public policy to cherish substance 
more than forms, and to hesitate long, and insist upon 
a clear case, before we pronounce the decrees and judg- 
ments of our Courts of Record roid, when brought col- 
laterally in question." 

It follows, of course, if the Chancery Court had the 
proper jurisdiction, that everything also will, in this 
contest, be taken to have been regular. 4 Sneed, 371. 

The objections to the decree in the case of Harriet 
Vaughan and others, under which Harrison purchased, 
have nothing in them. 

Judgment affirmed. 



£. A. Coleman, by &c. r. Joseph Satterfield, et al. 

1. Chanckry Jurisdiction. Innocent p%trehaser. When proiecied. 
It a deed is procured from a feme covert by fraud und coercioD, and 
the conveyoe selU and conveys the land to another person, for a val- 
uable consideration, who has no notice of the circumstances under 
which the deed was procured from such feme eovertt he is, in contem- 
plation of law, an innocent purchaser, and will be protected in hiA 
right. 

2. Same. Huaband and wife. Fraud in sale of wife' s land. Although, 
in such a case, the wife is not entitled to relief against such third 
person, yet she is entitled to a decree against the party who Iraudu- 
lently procured the deed from her, for the value of the land ; for, in 
consequence of his wrong, the estate is irrecoverably lost to her. 

8. HtmBAND AKD WiFE. Uutbond^s right to the real estate of the wife. 
By the common law the husband, by marriage, gains an estate of 
freehold in the lands of his wife, which he may convey by his own 
deed to another, and the wife can take no step, cither at law or in 
equity, to regain the possession of the land, so long as the coverture 



260 NASHVILLE : 



£. A. Coleman by &c,, v. Joseph Satterfield, etal, 

lasts. But her ultimate fee simple interest is not affected by her dis- 
ability, and on its termination she will be remitted to her right of 
action to recover the possession. 

4. Same. Same. When wife may sue, Clmid upon her title, Chan- 
eery jurisdiction. Although the husband, by his own act may, by the 
principles of the common law, defeat the wife's enjoyment of the 
possession and profits of her land, yet he has no power over her title 
or interest in fee; of this she can, alone, be divested by her own 
voluntary act, in the form prescribed by law. And the attempt to 
deprive her of it by fraud, force, or undue influence, either on the 
part of her husband or a stranger, furnishes her in a suit by next 
friend, a clear ground for redress in equity, by having said deed de- 
clared null, and the cloud removed from her title, although she may 
not be entitled to the present possession of the land. 

5. Sams. Fnm^, Same. Rights of the wife under the act of \%^-^. 
The act of 1849-50 materially changes the common law. It not only 
protects the husband's interest in the lands of his wife from seizure 
and sale by his creditors during her life, but it likewise disables the 
husband to sell or dispose of such interest, without her joining in the 
conveyance. And if a conveyance has been procured from her by 
fraud, or other improper means, whether by her husband or a stran- 
ger, she may maintain a bill, by next friend; to have it set aside, and 
to have the possession restored to her — ^making the husband a de- 
fendant.* 



FROM STEWART. 



On the trial, at the October Term, 1858, Chancellor 
Frierson dismissed the bill. The complainant appealed. 

W. Lowe, for the complainant. 

Kimble and Rice, for the defendant, Satterfield. 

McKiNNET, J., delivered the opinion of the Court. 

The complainant, who is a feme covert^ brought this 
bill, by her next friend, to recover a tract of land of 

* The provisions of the act of 1849-50 are incorporated into the Code, 
H 2481, 2482. 



DECEMBER TERM, 1858. 261 



E. A. Coleman, by &c., v. Joseph Satterfield, et al. 



eighty-nine acres, in Stewart county; which, hy a deed 
executed jointly hy herself and hushand, on the 29th of 
July, 1850, was conveyed to the defendant Cooly, who, 
shortly thereafter, sold and conveyed the same to the de- 
fendant, Satterfield, who is now in possession thereof. 
The land had been conveyed to the complainant when a 
feme sole^ by her grandmother. The consideration* paid 
by Cooly, to the defendant Coleman, complainant's hus- 
band, for said land, including the crop growing thereon, 
is stated in the deed, and shown by the proof, to have 
been $225 00, of which sum, one hundred dollars was 
the estimated value of the crop; making the price of 
the land but $125 00. The proof shows that the land 
itself, was then worth seven to eight dollars per acre; 
and in the deed from Cooly to Satterfield, the consid- 
eration is stated to have been $700 00. 

The bill charges, that she was induced to sign 
the deed to Cooly, and to acknowledge its execution, by 
fraud and threats of violence made against herself, and 
against the life of her husband, by the defendant, Cooly; 

ft 

and also to Surrender possession of the land, and remove 
to another State. It is further charged, that Satterfield, 
who purchased from Cooly, on the 2d of December, 1850, 
had full knowledge, at the time of his purchase, of all 
the facts respecting the manner in which the conveyance 
for the land had been extorted from her and her hus- 
band, by Cooly. The bill prays that the deed may be 
declared void ; that she be restored to possession of the 
land; and for general relief. 

The bill is taken as confessed against Cooly. The 
defendant, Satterfield, positively denies that, either at the 
time of his purchase, or of the payment of the purchase 



262 NASHVILLE: 



E. A. Coleman, by Ac., v. Joseph Satterfield, et oL 

money, he had any knowledge or information whatever, 
of the alleged fraud or force, on the part of Cooly, in 
obtaining said deed; nor had he any knowledge or in- 
formation thereof prior to this suit; and insists that he 
is a bona fide purchaser, for a full and valuable con- 
sideration ; and therefore claims that he shall be pro- 
tected in his purchase. 

The charges in the bill, as to the defendant, Cooly, 
are very fully sustained by the proof. He was himself 
examined as a witness for complainant, — without excep- 
tion^ as it seems, — and makes out a stronger, and more 
aggravated case of fraud and coercion, than is charged 
in the bill. From his own showing, however, and from 
other testimony in the record, his statement is perhaps 
entitled to no consideration, except for the purpose of 
charging himself. But, his evidence aside, the allegations 
of the bill, as to him, are sufficiently established. But 
as regards the defendant, Satterfield, there is no suffi- 
cient evidence to overcome the substantial averments of 
the answer, that, at the time of the purchase and pay- 
ment of the consideration money, and reception of the 
conveyance for the land he had no notice, or knowledge 
of the facts upon which the complainant's claim to relief 
is founded. 

The Chancellor dismissed the bill as to all the defend- 
ants. We find, upon examination of the record, that 
the legal obstacles which were supposed, on opening the 
case, to lie in the way of complainant to relief against 
either defendnnt, do not exist. The bill was filed in less 
than six years from the date of the conveyance to Cooly; 
so that, both the statute of limitations of 1819, and the 






DECEMBER TERM, 1858. 263 

S. A. Coleman, by &c., v. Joseph Satterfleld, et al, 

general statute applicable to money demands, in equity, 
are out of the case. 

The decree of the Chancellor, as to Satterfield, was 
correct; and the only point to be considered is, whether 
the complainant is entitled to a decree against the de- 
fendant, Cooly, for the value of the land. The husband, 
it seems, declined to join with his wife in filing a bill 
to have the conveyance set aside, and to be restored to 
the possession of the land. And the first question is, 
can the wife, in such case, sue separately in equity? 
Whether or not the proof makes such a case as would 
entitle the husband to relief, so far as he is concerned, 
is a question not important to be considered. For, ad- 
mitting that he might have maintained a suit in equity, 
in the joint names of himself and wife, to have the deed 
set aside, but refused to do so ; or assuming, on the other 
hand, that, as to him, the deed was executed under such 
circumstances as would estop him, in equity as well as 
at law, from avoiding it; still, the question is, may not 
the wife, in either case, maintain a b'.U, by her next 
friend, to be re-invested with the title, and restored to 
the possession of her estate, of which she had been de- 
prived by the exercise of fraud and coercion towards her 
personally? We think it clear that she may, under the 
act of 1849-50, ch. 36 ; and perhaps upon general prin- 
ciples of law. 

It is true, that, by the common law, the husband, by 
marriage, gains an estate of freehold in the lands of his 
wife, in her right, which continues at least during their 
joint lives, and may possibly last during his own life. 
And this interest he may, by his own deed, convey to 
another, and the conveyance will operate to vest the pur- 



264 NASHVILLE : 



E. A. Coleman, by &c., v. Joseph Satterfield, et al 



cbaser with the husband's estate; or the husband maj 
voluntarily suffer a disseizin ; or acquiesce in a wrongful 
ouater of the possession ; and in neither case can the 
wife, separately, take any step at law or in equity to 
regain the possession; she is r/ithout remedy, by the 
common law, so long as the coverture lasts. But, still, 
her ultimate fee simple interest is not affected during her 
disability; and on its termination, she will be remitted 
to her right of action to recover the possession. 

But though the husband, by his own act, may defeat 
the wife's enjoyment of the possession and profits of her 
land, by the principles of the common law, yet he has 
no power over her title or interest in fee; of this she 
can only be divested by her own voluntary act, in the 
form prescribed by law. And the attempt to deprive her 
of it by fraud or force, either on the part of her hus- 
band, or a stranger, furnishes her a clear ground for 
redress in equity, where a married woman may sue sep- 
arately. 

In this view, upon general principles, the bill might 
well be sustained so far, at least, as it seeks to have 
the deed set aside. But under the act of 1849-50, her 
right to relief is perhaps broader and more ample. By 
that act, the common law is materially changed. It not 
only protects the husband's interest in the lands of his 
wife from seizure and sale by his creditors, during her 
lifey but it likewise disables the husband to sell or dis- 
pose of such interest, by his own act, during the wife's 
lifetime, without her joining in the conveyance. By the 
necessary construction of this act, the wife cannot be de- 
prived either of the title, or possession of her lands, 
except by her own voluntary act. And if a conveyance 



DECEMBER TERM, 1848. 265 

II I _ LI — — ' 

E. A. Coleman, by Ac, v. Joseph Satter field, et al, 

has been procured from her by fraud or other improper 
means, whether by her hiisband or a stranger, she may 
mamtain a bill to have it set aside, and to have the 
possession restored to her, — ^making the husband a party 
defendant. The object of the act, is the protection of 
the rights of the wife, rather than the husband's ; and 
to deny her the right to sue separately in equity, in a 
case like the present, would be to defeat the obvious 
intention of the statute. 

The remaining inquiry is, what relief is the complain- 
ant entitled to, under the peculiar circumstances of this 
case? It is clear that no decree can be made against 
the defendant, Satterfield. He acquired the legal title 
to the land, without notice of the complainant's equity, 
and for an adequate consideration, and must be treated 
as an innocent purchaser. The complainant cannot, there- 
fore, regain the land itself. But we think it no less 
clear, that she is entitled to a decree against tho de- 
fendant, Cooly, for the value of the land. This measure 
of relief results upon either of two distinct grounds. 
Pirst, that in consequence of his wrong^ the estate is 
irrecoverably lost to the complainant; and, secondly, that 
viewed as a purchaser^ he fraudulently acquired the prop- 
erty, without any adequate consideration given for it. 

The decree of the Chancellor will be modified accord- 
ingly. 



266 NASHVILLE : 



William J. Alston, el al. v. Rebecca Davis, et al. 



2US86I 

JUILSl William J. Alston et al v. Rebecca Davis et ah 



1. Will. Consiructio^u Limitation over. When, by a will, an abso- 
lute gift of the property is made in the first instance, followed by a 
limitation over on the death of the devisee or legatee, the absolute 
gift is not taken away by the gift over, unless the gift over may itself 
take effect. 

2. Same. Same, Same. Illustration of the principle. The testator 
divided his estate among his children, of whom Rebecca Davis was 
one, and provided that her share should be vested in the hands of a 
trustee or trustees, for her use and benefit during her natural life, not 
subject to the control or obligations of her husband, and at her death, 
to be equallj divided among her bodily heirs. By the proper con- 
struction of the will, in the event there are no "bodily heirs" (which 
in this connection means children) of the said Rebecca Davis, the 
gift becomes absolute. The testator did not, in that event, die intes- 
tate as to the remainder, so that the same would go to his heirs at law, 
under the statutes of distribution. 



FROM WILLUMSON. 



The bill was dismissed upon the hearing at the Oc- 
tober Term, 1868, Frierson, Chancellor, presiding. The 
complainants appealed. 



■, for the complainaTits. 



', for the defendants. 



McKiNNEY, J., delivered the opinion of the Court. 

The question for our determination is, what interest 
does the defendant, Rebecca Davis, take under the will 
of John Swancy; is it restricted to a life estate, or 



DECEMBER TERM, 1858. 267 



William J. Alston et al, v, Rebecca Davis et al. 



does she take the absolute estate, subject to a contin- 
gent executory limitation over, in the event of her leav- 
ing children at her death ? 

The will of the testator, after providing for the sale 
of all his property, and the payment of some specific 
legacies, directs that the executors *^ shall divide all the 
rest and residue of my estate, of every kind and descrip- 
tion, whether the same be proceeds of the sale of real 
or personal estate, or debts coming to me, equally be- 
tween the following named persons, each to receive, 
share and share alike, to-wit : My son, James N. 
Swancy; my three daughters, Sarah Vanzant, wife of 
Vanzant; Nancy Palmore, wife of James Pal- 
more ; Rebecca Davis, wife of B. S. Davis ; and my 
step-daughter, Elizabeth Hamilton, wife of Reuben Ham- 
ilton; also, my illegitimate son, John Swancy. But it 
is my will and desire that the shares of my daughters, 
Sarah Vanzant, Nancy Palmore, Rebecca Davis, and my 
step- daughter, Elizabeth Hamilton, shall be vested in the 
hands of a trustee or trustees, for their use and benefit 
during their natural lives; and at their death, to be 
equally divided among their bodily heirs." After provid- 
ing for the appointment of trustees for the daughters 
and step-daughter, with power to vest the money of 
each in land or negroes, the bill proceeds, ^^ which 
shares of money or property I wish my daughters and 
step- daughter to have and use during their natural life, 
not subject to the control or obligations of their respec- 
tive husbands; and at their death, to be equally divided 
among their bodily heirs." 

Rebecca Davis is still living, but has no child living, 
and having reached the age of about sixty years, in the 



268 NASHVILLE : 



William J. Alston ei al. v, Bebecca DaTis et al. 



ordinary course of nature, will have no child in future. 
Her share of the estate is still in the hands of her 
trustee, who resides in this State. But she and her 
husband being residents of Kentucky, an application was 
made to have the fund transferred to the possession of 
a new trustee appointed in the latter State. To pre- 
vent the removal of the fund, was the object of the 
present bill, which was dismissed on demurrer. 

The bill assumes that it was the intention of the 
testator that Mrs. Davis should take nothing more than 
a life estate, and such, it is insisted, is the proper con- 
struction of the will. The argument is, that as the will 
makes no disposition of the remainder, in case of Mrs. 
Davis's death without child or children ; and that event 
being now morally, perhaps absolutely, certain; the tes- 
tator must be held to have died intestate as to the re- 
mainder interest; and, consequently, on her death, the 
heirs at law of the testator will be entitled to it under 
the statute of distributions. The Chancellor held other- 
wise, and we think correctly. 

The general principle is well established, that where, 
by the will, an absolute gift of the property is made, 
in the first instance, followed by a limitation over, on 
the death of the devisee or legatee; the absolute gift is 
not taken away by the gift over, unless the gift over 
may itself take effect. And this principle is decisive of 
the present case. Here, by the first sentence of the 
residuary clause, taken by itself, an absolute gift is made 
to each of the several persons named therein; the three 
married daughters, and step-daughter, are placed on a 
footing of perfect equality with the sons — each is to 
have an equal share. The subsequent provisions of the 



DECEMBER TERM, 1858. 269 



WillUm J. Alston et al. v, Kebecca Davis ei al. 

will, resting the shares of the married women -in trus- 
tees, for their separate use during life, with a limitation 
over to their "bodily heirs" (which, in this connection, 
means children) in the event of leaving children at their 
deaths, do not affect the principle. 

No provision is made for the contingency of the 
daughters' dying without children; and this must be taken 
as evidence of the testator's intention, that, in such 
event, the gift should be absolute, as it is not to be' 
presumed that ha intended to die intestate as to any 
part of his property. And such is the legal construc- 
tion. The gift is not subject to any other contingency 
or limitation beyond that which is expressed, and if that 
cannot take effect, the gift remains absolute. For the 
limitation over, in a particular event expressly stated in 
the will, excludes all presumption of intention that the 
subject of the gift should go over in any other event. 

The result is, that the absolute gift to Mrs. Davis, by 
force of the first operative words of the clause, remains 
in her, except so far as it is taken away by the ex- 
ecutory bequest over, in favor of her children living at 
her death; and it is not taken away in the event of 
her dying without a child or children. Hulme v. Hulmey 
16 Eng. Ch. R., 644; 2 Jac. & Walker, 279; Whittell v. 
Derdin^ 15 Eng. Ch. R., 690 ; Jackson v. Nobh^ 8 Beav., 
443; 1 Jarman on Wills, 782, marg. et seq. 

Decree affirmed. 



2T0 NASHVILLE : 



Hardy Syland «. William Brown et al. 



Hardy Ryland v. William Brown et al. 

1. BiLiJB AND Notes. Assignment. Consideration. Fraud. Notice of 
equity. If a note is assigned to a party, before due, with notice, actual 
or constructive, that it is, void, or subject to be impeached in the 
hands of the payee, either for fraud* or want, or failure of considera- 
tion, he will hold it subject to the same equities to which it was liable 
in the hands of the payee. 

2. Same. Same, What siifficient notice of an equity against the note. 
Whatever is sufficient to put a person upon inquiry, is equivalent to 
notice ; and when a person has sufficient information to lead him to a 
knowledge of a fact, he will bo presumed to be cognizant of that fact. 

8. Same. Same. Sam^. What the recital of the consideration imposes. 
The recital in a note, that it was given for land, does not require a 
person to examine, at his peril, the records, before taking such note, 
for the purpose of ascertaining whether, as between antecedent parties 
liens might not exist, growing out of unpaid purchase money. He 

' would at most, only be required to know that the maker of the note 
was in the peaceable possession of the land under a title sufficient in 
law to invest him with a fee simple estate, accompanied with the 
usual covenants for his Indemnity. 

4. Same. Heeital of consideration. Q^estion reserved. The recital of 
the consideration in negotiable paper is unusual, but its negotiability 
is not, thereby, affi^cted. And if it be merely stated that the consid- 
eration of the note is the purchase of land or merchandise, is an inno- 
cent holder bound to know that the purchaser acquired a good title to 
the land, or that he received the goods bargained for ? 

5. Same. Equity against. Suit prematurely brought. If a note given 
for land is transferred to an innocent party, it would be prema- 
ture, on the part of the maker of said note, to commence suit to 
avoid payment thereof, on the ground of failure of the consideration, 
before there is an attempt, or a contemplated attempt, to subject the 
land to a prior equity, if such exists. 



FROM BEDFORD. 



This cause was heard before Ridlby, Chancellor, at 
the November Term, 1858. Decree for the complainant. 
The defendants appealed. 



DECEMBER TERM, 1858. 271 

Hardy Syland v. William Brown et al. 

W. H. WiSBNKR and J. L. Scupdbr, for the com- 
plainants. 

£. & H. Cooper, for tbe defendants. 

McKiNNET J., delivered the opinion of the Court. 

This bill was filed to enjoin the collection of a note 
given for the consideration, in part, of a tract of land. 

The substantial facts necessary to be stated, in order 
to present the question submitted for determination, are, 
that, on the 5th of April, 1856, the complainant pur- 
chased from the defendant, Thompson, two tracts of land, 
at the price of $2,000; and for a portion of the pur- 
chase money, not discharged at the time of the con- 
tract, he executed two notes — one for $838.88, and the 
other for $666.66. The consideration of said notes is 
expressed upon their faces, as follows: ^^The same being, 
in part, for an 85 acre, and 100 acre tract of land, 
this day bought of him.'' At the time of the contract, 
Thompson conveyed said lands to complainant by deed, 
with covenant of general warranty; and though the fact 
is not directly alleged or proved, the inference is 
irresistible, from the whole record, and is not denied in 
argument, that the complainant was put in possession 
of the premises by his vendor, and still continues in the 
undisturbed enjoyment of the same. It is shown that 
the 100 acre tract above-mentioned originially formed 
part of am entire tract of about 480 acres, purchased 
by said Thompson from one Gauntt, in February, 1854, 
and on the face of the deed from Gauntt to Thompson 
for said tract, (which was registered,) a lien is expressly 
reserved to secure the purchase money. 



272 NASHVILLE : 



Hard J By land v, William Brown et al. 



It appears, also, that Thompson had divided said 
tract, and sold it in separate parcels — the 100 acres 
purchased hy complainant being the last parcel sold. It 
is further established, that about $1,500 of the consid- 
eration money still remains unpaid, from Thompson to 
Gauntt; for which, it is supposed, the said 100 acre tract 
is liable to be made subject — Thompson having, shortly 
before the filing of the bill, become wholly insolvent. 

The two notes above-mentioned, executed by com- 
plainant to Thompson, were assigned to the defendant, 
Brown, before due, and without actual notice of any 
existing equity against them, as between the original 
parties. Upon the smaller note of the two, which was 
assigned to defendant, Brown, on the 23d of November, 
1866, the latter had obtained judgment before a justice, 
to enjoin which this bill was filed. The ground of 
equity is the assumed liability of the 100 acre tract, 
for which said two notes were given (the price of the 
85 acre tract having been discharged at the time of the 
contract) to the $1,500, unpaid purchase money, due 
from Thompson to Gauntt. This, it is alleged, consti- 
tutes a failure of the consideration of said two notes; 
and it is insisted that the defendant. Brown, is to be 
affected by this equity, by the constructive notice arising 
out of the recital, in the notes, of the consideration for 
which they were given. The complainant substantially 
alleges in the bill, that he was wholly ignorant of the 
fact that any portion of the purchase money of said 
land remained unpaid by Thompson to Gauntt, or that 
any such lien existed upon the 100 acres purchased by 
him, until the day preceding the filing of the present 
bill, which was the 2d of October, 1857. 



DEOEMBER TERM, 1858. 278 

Hardy SyUnd v. William Brown' e^ al. 

It does not appear from the record, that (}aaiitt has 
taken any step to assert his supposed equitable lien 
upon said 100 acres of land, or that he contemplates 
doing BO. This however is, perhaps, not important, as 
we do not intend to discuss the question, whether or 
not, upon the facts in this record, the lien could be 
made available against the complainant. But assuming, 
for the purpose of the preseiit determination, that a valid 
lien exists, we will confine ourselves to the question, 
whether, upon that ground, the complainant can avoid 
the payment of the notes to Brown? 

It is not pretended that the defendant is not a bona 
fide holder of the note for a valuable consideration, 
without notice of the facts upon which, according to the 
assumption, its validity may be impeached, unless the 
statement on the face of the note shall be held to be 
constructive notice of the facts. 

It is conceded that whatever is sufficient to put a 
person upon inquiry, is equivalent to notice; and that 
where he has sufficient information to }ead him to the 
knowledge of a fact, he shall be presumed to be cog- 
nisant of that fact. Upon this principle it is insisted 
that the defendant is chargeable with notice of the sup* 
posed equity in favor of complainant against the note in 
question; that information of the fact, derived from the 
face of the note, that it was given for specific tracts of 
land, was sufficient to put him upon a search of the 
register's books to see whether or not the lands were 
free from all liens and incumbrances which might, by 
possibility, afiect the title of the complainant, and, by 
consequence, the validity of the notes given for the con- 
sideration money; and that it was likewise incumbent 
18 



274 NASHVILLE : 



Hardy Syland v. William Brown et al. 



upon him to inquire into the fact whether or not the 
purchase money had been fully paid to Oauntt, for the 
security of which a lien had been reserved, as before 
stated. 

We fully assent to the legal proposition, that if 
Brown, at the time he took the note, had notice, either 
actual or constructive, that it was void, or subject to be 
impeached in the hands of Thompson, either for fraud, 
or want, or failure of consideration, he will hold it 
subject to the same equities to which it was liable in 
the hands of Thompson. But we are unable to concur 
with the complainant's counsel as to the extent of the duty 
or obligation imposed upon the defendant by the recital 
in the note. If the argument be sound, it wil* neces- 
sarily prove a very serious obstruction to the negOtia^^n 
and free circulation of commercial paper. ^^F^ 

The statement of the con%iderati<m is unulNn^in ne- 
gotiable paper; but, still, its negotiability is not thereby 
affected. And if unnecessarily stated in a note, what 
effect can be predicated of it, as against a hona fide 
holder who received it before due, for a valuable con- 
sideration, and without actual notice of any equity ex- 
isting against it in the hands of the original holder? 
If it, be merely stated that the consideration of the note 
was the purchase of land, or merchandise, «is an inno- 
cent holder bound to know that the purchaser acquired 
a good title to the land, or that he received the goods 
bargained for ? We should hesitate to a&m that he 
was. But this point is not necessary to be decided in 
the present case. Admit, for the sake of the argument, 
that such a statement in the note imposes some sort of 
duty upon the person who takes it, in due course of 



DECEMBER TERM, 1858. 275 

Hardy Ryland v. Williasi Brown et oL • 

trade, and under the ciropmstances before stated, what 
is the extent of that duty? In the present instance, 
was the defendant, at his peril, bound to examine the 
records of the register's o£Bce beyond the conveyance 
made to the complainant, for the purpose of ascertaining 
whether, as between antecedent parties, liens might not 
exist, growing out of unpaid purchase money, by which 
the title of the former might, by possibility, be affected? 
We think not. If any duty rested upon the defendant, 
the full extent of it was, simply, to know that the 
complainant was in the peaceable possession of the land 
under a title sufficient, in law, to invest him with a fee 
simple estate, accompanied with the usual covenants for 
his indemnity. If this view be correct, the bill is des- 
titute of equity. But were it otherwise, the bill was 
prematurely filed. It would be introducing a new prin- 
ciple to hold, as the Chancellor did, that the complainant 
might avoid payment of the note given for the land, on 
the ground of failure of the consideration, when there 
is no intimation in the bill of any attempt, or even 
apprehension of an attempt, to subject the land to the 
supposed liability in favor of Gauntt. 

The decree must be reversed, and the bill dismissed. 



276 NASHVILLE : 



Robert D. Morgan ei al. v. Bobert Reed et aL 



RoBBRT D. Morgan et al. v. Robert Reed et al. 

1. Constitutional Law. Sale of slaves. Act of 1866, ch. 112, { 8. 
Art, 11, 2 7, of the Ckmsiiiutian. The act of 1856, ch. 112, i 8, which 
declares, ** That the title of all persons to any slave or slaves sold un- 
der proceedings in the Circuit, Chancery or County Court, under the 
act of 1827, and to which the heirs, distributoes, or legatees were not 
made parties, shall be forever barred, unless suit to recover said slave 
or slaves shall be instituted within six months after the passage of this 
act," is in violation of Article 11, { 7, of the Constitution, and is 
void. 

2. Statute of Limitations. When one capable of suina. Slaves. 
If one of several parties who have a joint right to slaves is free from 
disability, and iu a condition to be capable of suing, the statute of 
limitations will run against, and bar the right of all of said parties in 
case there is an adverse holding of the slaves for the period of three 
years. 

8. Same. Same. Severance of the joijit right A sale by one or more of 
the joint owners of slaves who are sui juriss of their interest in 
them operates as a severance of the joint interest, and leaves the par- 
ties under disability at liberty to sue separately for their slaves, as if 
there had never existed a unity of title or of interest between them 
and the other joint owners. And, consequently, the statute of limi- 
tations will not bar the right of those under disability, until after 
three years from the removal of the same, as to all. 

4. Same. Same. Same. Estoppel. If two of the distributees of an 
estate, who are sui jurisy administer, and in that capacity, petition 
and procure an order for the sale of the slaves of their intestate, 4n 
which they have a joint interest, but which proceeding is void against 
the other distributees, who are then minors, by reason of the latter 
not being made parties, such adult distributees are placed under an 
estoppel, and, thereby, disabled from suing ; and the fact that they 
were co-distributees and sui juris, (the joint interest of the parties 
having been severed by the sale,) will not bar the right of the infants to 
sue 8nd recover, at any time within three years after the youngest ar- 
rives at age. 



FROM BEDFORD. 



This cause was heard, and the bill dismissed, at the 
Noyember Term, 1858, Ridley, Chancellor, presiding. 



DECEMBER TERM, 1858. 277 

Bobert D. Morgan ei al, v. Bobert Keed et al. 

E. A. Ebeble, for the complainants. 
Steele, on the same side, said: 

As to the act of 1856; complainants insist it is 
uneon^tituttonal and void. 2 Ycr., 260, 554, 599. 

As to the statute of limitations of three years, it 
cannot apply to this case. 

When all are nnder disabilities at the time the ac- 
tion accrued^ then none are barred until the disability is 
removed as to all. 

The widow was a joint owner, but she was estoppedy 
(and, therefore, under a disability,) by her act of join- 
ing in the sale to defendant, Reed. 

The widow joining in the sale to Reed may be, 
technically y a ieverance of the joint estate; but that 
can have no effect upon the rights of the parties, so as 
to bar them as fast as the disabilities should be re- 
moved. In joint estatesy either party may sue, but none 
are compelled to sue, or be barred until the disability 
is removed as to all. 

The act of 1856, if constitutional, should be strictly 
construed in favor of those it was intended to operate 
against. The language of the act is, that in all cases 
where slaves have been sold under the act of 1827, ch. 
51, without making the heirs y ^c, partiesy ^c. The 
language of the act clearly imports, that when all the 
other requirements of the act of 1827 had been com- 
plied with, except the making of the heirs parties in 
sucK cases, the heirs shall sue within six months. 

The act of 1827 requires the Court to hear other 
evidence than the petition; this was not done in this 



278 NASHVILLE : 



Bobert D. Morgan et al. v, Bobert Beed et al. 

case, so that the sale was void for other reasons, be- 
sides not making the heirs parties. 

There is no such act as 1827, ch. 51 ; the act of 
1827, ch. 61, was, we suppose, meant. 



W. H. WiSENER, for the defendants: 

The sale is conceded to be void, according to the 
case of Elliott v. Cochran et al, 2 Sneed, 468. But it 
is insisted that the complainants have no right to re- 
cover, because of the statute of limitations of 1856, ch. 
112, § 8. If this act be constitutional, they are all 
barred. The statute of limitations only operates upon 
the remedy, and is no part of the contract. Meigs' Rep., 
34, and 4 Hum., 13 to 21. 

Then, if no part of the contract, they may be ex- 
tended or shortened. 4 Hum., 13 to 21. And it is 
only a question of expediency which the legislative 
power must determine for itself, and having done so, 
Courts cannot interfere, because the Legislature may have, 
in the opinion of the other co-ordinate department of 
the government, shortened the time in a manner which 
might be considered too limited for the interests of the 
parties to be affected thereby. The authorities quoted, 
and references, sustain the position that these enact- 
ments, as to this point, are constitutional. 

But it may be said, that this is not '^the law of 
the land,'' that is a partial law, and, therefore, uncon- 
stitutional. It is true, there is a limit on the power of 
the Legislature contained in the constitution, to be found 



DECEMBER TERM, 1858. 279 

Bobert D. Morgan et at. v, Robert Reed et al, 

in article 11, section 7. This, it is contended only ap- 
plies to legislation, for particular individuals, and not to 
classes. 

A clause in the Union Bank Charter, which made 
certain acts of its officers felony, was declared, in the 
case of Budd y. The StatCy 8 Hum., 488, unconstitu- 
tional, upon the ground that it was limited to officers 
of that corporation. But it was conceded in that case 
by the Court, if the clause had applied to the officers 
of all banks in the State, that it would have been con- 
stitutional. 2 Hum., 285, and 2 Yer., 260. 

Suppose this section of the act of 1855, had been 
engrafted into the act of 1827, as a proviso, would it 
not have been constitutional? But suppose this law is 
nnconstitutjonal, then, it is insisted, that the complain- 
ants are all barred by the general statute of three 
years. And if this is not so, they are all barred but 
Uie two youngest, who are not yet twenty-four years of 
age. 

By the sale made by the administrators, they being dis- 
tributees and joint owners with complainants, the joint 
ownership was severed, and each might sue for his or her 
share ; as they might sue in regard to land ; as they 
could do so they are each barred, unless they bring 
suit within the time limited by the statute, after arriv- 
ing at age; and not having done so; the case of Shute 
V. Wade J 5 Yer., 1, does not apply. 

The case of Parker v. Elder ^ 11 Hum., 546, settles 
the principle, that the sale to the defendant, by and of 
his joint interest, is a severance, and each may then 
sue for his share. 

The decree obtained by the widow and Bucking- 



280 NASHVILLE : 



Kobert D. Morgan et al, v, Bobert Beed et tU, 

ham, and Bale under it, and report thereof, will operate 
to convey their interest to the purchaser, Beed, and is, 
therefore, a severance of the joint ownership. 

The complainants cannot recover the share of George 
Morgan; the statute will vest his interest in the pur- 
chaser. 

K this latter view of the case be correct, only two 
of the complainants can recover; and their share is one- 
eighth each. Nor can the share of Mrs. Buckingham be 
recovered. 

And in the event of a recovery of any portion of 
the slaves, to that extent, as they are asking equity, 
and the money of defendant went to pay their ances- 
tors debts ; the complainants, or such of them as suc- 
ceed, must refund the purchase money with interest. 

The Chancellor being of opinion that the act of 
1855-6 was constitutional and governed the case, dis- 
missed the bill; and we insist, here, his decree was right 
and must be affirmed. 



McKiNNBT, J., delivered the opinion of the Court. 

The complainants, who are a part of the distributees of 
the estate of Moses A. Morgan, who died intestate in 
Bedford county, in the year 1845, brought this bill to 
recover certain slaves claimed by them, in the posses- 
sion of the defendant, Beed. The intestate left a 
widow and seven children ; the latter were then all in- 
fants under the age of twenty-one, and two of them are 



DECEMBER TERM, 1858. 281 

Robert D. Morgan et eU, v, Robert Roed et al. 

Btill minors. The oldest daughter, however, had inter- 
married with one Buckingham, prior to the death of the 
intestate, during her minority. The widow and said Buck- 
ingham were appointed administratros of the estate. In 
that character they presented a petition to the Circuit 
Court of Bedford county, to which the distributees were 
not made parties, for the sale of two slaves, the prop- 
erty of the estate, Mary and Jeff. 

At the August Term, 1845, the Court decreed a sale 
of said slaves, on the 9tatement of the petitiofiy that a 
sale was necessary ^Ho pay debts, and to make distri- 
bution ;" which statement, as the decree recites, was 
^^ believed by the Court." And, accordingly, the two 
slaves were sold, and purchased by the defendant. Reed, 
for $675.00. Two of the distributees are dead, to- wit: 
Malissa, the wife of Buckingham, who died some six years 
ago; and George, who died in 1855, during minority, 
and without issue. 

This bill was filed on the 24th of August, 1858, by 
the five surviving children, the widow and Buckingham 
being made defendants. The Chancellor dismissed the 
bill. 

It is conceded in argument, that the sale of the 
slaves was void, under the decision in Mliott v. Ooch- 
rauj 2 Sneed, 468, and other decisions of this Court. 
But it is insisted, that the complainants right to recover 
the slaves, is barred by the act of 1855-6, ch. 112, 
sec. 8, which declares : ^' That the title of all persons 
to any slave or slaves, sold under proceedings of 
the Circuit, Chancery or County Court, under the act 
of 1827, and to which the heirs, distributees, or lega- 
tees, were not made parties, shall be forever barred, un- 



282 NASHVILLE : 



Robert D. Morgan ei al. v. Kobert Reed et al, 

less suit to recoyer said slave or slaves shall be insti- 
tuted within six months after the passage .of this act." 

We feel constrained to declare this extraordinary en- 
actment to be unconstitutional and void. There is much 
plausibility in the argument, that it violates the spirit of 
both the 8th and 20th sections of Art. 1, inasmuch as 
it attempts to deprive certain persons of their property, 
contrary to '^ the law of the land ;*' and is also a 
^^retrospective law/' But, perhaps, it is a still more 
palpable infringement of the provisions of sec. 7, Art. 
11, which declares, that '^the Legislature shall have no 
power to suspend any general law, for the benefit of 
any particular individual. Nor to pass any law for the 
benefit of individuals, inconsistent with the general laws 
of the land." 

Can a more direct violation of the true spirit and 
meaning of these fundamental provisions be imagined, 
than is presented by the section of the act above cited? 
We think not. What does it propose? In some in- 
stances, prior to the passage of this act, sales had been 
made of slaves, under color of judicial proceedings, pro- 
fessing to have been founded upon the act of 1827, 
but which were, in fact, wholly contrary to law, and 
void ; communicating no title to the purchaser, and 
divesting no title out of the former owner. By the 
general law of the land, as it existed at the time of 
these illegal sales, the persons who had thus b^en de- 
prived of their property contrary to law, had the un- 
questionable right to bring suit for its recovery at any 
time within three years after the sale. And if the 
owner happened to be an infant, or under other legal 



DECEMBER TERM, 1858. 283 

Robert D. Morgan ei al. v. Bobert Keed et cU. 

disability, his right of action was saved for the period 
of three years after the disability ceased to exist. 

Now, as a sort of "relief measure/' in cases of 
snch irregular and void sales as had been previously 
made, it is attempted by the act of 1856, in the very 
teeth of the constitution, (Art. 11, sec. 7,) "to suspend 
a general law for the benefit of (these) particular indi- 
vidual " purchasers ; or, in other words, " to pass a law 
for the benefit of individuals, inconsistent with the general 
law of the land." 

The act, it will be observed, does not contemplate any 
change of the existing " general law " in the future ; it 
does not provide, that, in all similar cases of irregular 
sales of slaves, w^hich may be made after its passage, 
suits shall be brought within six months, instead of 
three years. 

It is altogether retrospective in its operation, refer- 
ing, only, to past cases, and having no reference what- 
ever to the future. In short, its whole scope and ob- 
ject, is simply to exempt "particular individuals," or 
special cases, from the operation of " the general law of 
the land ;" or, " to suspend the general " law in their 
favor. 

This conclusion, it seems to us, is so obvious, that 
argument is scarcely necessary to make it clearer. 

There is no force in the argument, that the act 
affects, only, the remedy^ and not the right. The remedy 
is sometimes so incorporated with the right, that it 
would be extremely difficult, if not impossible, to main- 
tain, in any proper sense, that the former can be im- 
paired without affecting the latter. But this is a point 
we need not stop to discuss, as it is clear beyond all 



284 NASHVILLE: 



Robert D. Morgan et al. v. Robert Reed ei al. 

doubt, that the prohibitions of the constitution, in letter 
and spirit, apply as much to remedies as to rights. It 
was thought proper and necessary that the rules regu- 
lating the remedy/ should be equal and uniform in their 
operation, as well as those regulating the rights of the 
citizens. And surely this is correct; for if the remedy 
may be frittered away, what is the right worth ? 

The act is likewise subject to the objection, as has 
been argued, of being a partial law. It does not pro- 
fess to be applicable to all illegal sales of slave prop- 
erty, but only to judicial sales, under a particular 
statute ; and not even to all irregular sales under that 
statute, but only to the special case, where " the heir, 
distributees, or legatees were not made parties." The 
act seems not to contemplate or provide for other irreg- 
ularities in proceedings, under the act of 1827, which 
might avoid a sale ; nor does it apply to an illegal sale 
of slaves by the sheriff, under the ordinary process of 
fieri facias. 

If the act had been merely prospective^ so as only to 
operate on sales to be made after its passage, whatever 
might be thought of its unreasonable severity and in- 
justice, in extending indiscriminately to all persons^ re- 
gardless of the rights of those laboring under legal 
disabilities; still, so far as regards the question of con- 
stitutional power, it might, perhaps, be sustained. But 
being of the character already stated, it is impossible to 
support it, without yielding to the Legislature the exer- 
cise . of a power expressly denied by the constitution. 

But, it cannot be necessary to reason upon this sub- 
ject, as a simple comparison of the act with the pro- 



DECEMBER TERM, 1853. 285 

Robert D. Morgan et al. v. Robert Reed et al. 

yisions of the constitution, demonstrates at once their 
entire incompatibility. 

But, it is argued for the defendant, that admitting 
the act of 1856 to be void, still, the complainants are 
barred bj the general statute of limitations of three 
years. And this conclusion, it is assumed, results from 
the application of the principle of Shute y. Wade^ 5 
Yer., to the facts of the case. It is insisted, that in- 
asmuch as the widow, who was a distributee, and Buck- 
ingham, in right of his wife another distributee, were 
free from disability, that the statute began to operate 
in favor of the defendant. Reed, and against all the 
distributees, from the time of the sale and purchase of 
the slaves in question. This reasoning is fallacious : and is 
an attempt to misapply the true principle of the case of 
Shute V. Wadej which is, that if one of the parties be 
free from disability, and in a condition to be capable of 
suing, the statute will run against all. But here, the 
widow and son- in-law, Buckingham, as administrators, had 
disabled themselves to sue, and were placed under an 
estoppel to do so, by the fact that the sale was made 
upon their own application, and by themselves ; and be- 
cause, the sale, though void as to the infants, not parties, 
was binding upon them, and operated to divest them of 
their respective interests, and to transfer the same to the 
purchaser. The reason of the rule in Shute v. Wade^ 
does not, therefore, apply to the present case. 

And the only question is, whether the fact, that two 
of the distributees, who were joint owners with the in- 
fants of the slaves and who were 9ui jur%%j having dis- 
abled themselves to sue, shall Lave the effect of destroy- 
ing the right of recovery of the other joint owners, so 



286 NASHVILLE : 



Bobert J). Morgan et cU. v, Robert Beed ei al. 

far as the interests of the latter are involved. We think 
not, upon well established principles. The effect of the 
sale, so far as the widow and Buckingham are concerned, 
was, as we have seen, to divest them of their interests, 
and vest the same in the purchaser. It was, in effect, 
by operation of law, a sale of their distributive shares 
to the latter. And in this view, it operated a severance 
of the joint interest, by their act ; and, by legal conse- 
quence, left the infants who were not parties and had 
no participation in the matter, at liberty to sue sepa- 
rately for their distributive shares, as if there had never 
existed a unity of title, or of interest between them, 
and the other two distributees, to the slaves in contro- 
versy. Parker v. Elder^ 11 Hum., 546. This being so, 
the five complainants in this suit, who were all minors 
when their right of action accrued, and of whom two 
are still minors, are within the saving of the statute, as 
expounded in Shute v. Wade; and, consequently, may 
well maintain the present suit, to recover five-eighths of 
the slaves in coutroversy. As to the minor who died 
in 1855, as there is no representative of his estate be- 
fore the Court, no decree can be made in respect to 
his interest. 

But, as the complainants seek equity, they must do 
equity; and, therefore, if it shall appear, upon an inquiry 
to be made before the master, that the proceeds of the 
sale of the slaves were applied by the administrators in 
discharge of debts due from the intestate's estate, in 
the proper course of administration, or otherwise properly 
applied to the benefit of complainants, the latter will be 
held bound to refund to defendant, Reed, five-eighths of 
the price paid by him for the slaves, with interest 



DECEMBER TERM, 1858. 287 

Robert D. Morgan et al. v. Robert Reed et al, 

thereon; and their interests in the slaves will be held 
liable for the same if not otherwise paid. 

Decree of the Chancellor reversed, and a decree will 
be rendered conformable to this opinion. 



I 

/ 



/ 



CASES ARGUED AND DETERMINED 



IS THE 



SUPREME CODRT OF TENNESSEE, 



FOR THE 



WESTERN DIVISION. 



JACKSON: APRIL TERM, 1859. 



G. M. BiBDSONQ V. John C. Birdsong et al. 



1. Contract. Inadequacy of consideration, FraiuL Chancery. Th« 
mere inadequacy of price, independent of other circumstances, when 
the parties stand on equal ground, and deal with each other without 
any imposition, or oppression, will not be sufficient to authorize a 
Court of Equity to set aside a sale. Inadequacy of consideration is 
only a badge of fraud. 

2. Same. Same, Same. Same. When advantage is iahen If, how- 
\ ever, advantage be taken, on either side, of the ignorance or distress of 

^ the other, it affords a new and distinct ground of equity ; and a very 

great inadequacy of price will form a presumption of oppression. 

8. Same. Sa;me. Undue influence. A contract will be set aside 
when it is obtained by undue influence over a person greatly under 
the power of another, if there is inadequacy of consideration, or a 
clear ground of inference that a confidence reposed had been abused, 
or advantage taken of incompetency, weakness of understanding, or 
clouded or enfeebled faculties. 

4. Same. Same. Same. It is not necessary that the influence should 
be due to antecedent or extraneous circumstances, it may have arisen 
in the course of the same transaction in which it was exerted. It is 
suficient to show such a condition of dependency from any cause, as 
to raise the presumption that the party was unable to protect himself, 
and to justify the interference of the law to protect him. 

19 



290 JACKSON : 



G. M. BirdsoDg v. John G. BirdsoDg et al. 



5. Same. Same Same, Drunkenness. Contracts made by persons 
under the influence of liquor, without being completely intoxicated, 
are governed by the same principles which apply to other cases where 
one party is in a position to expose him to the exercise of an improper 
influence by the other. If carried so far that the reasoning powers 
are destroyed, the contract is void ; but when it falls short of this, the 
contract will not be avoided, unless undue advantage has been taken, 
by one party, of the condition of the other. 

6. Same. Same. Same. Same. If a party, while excited by liquor, 
has been led into a hard and disadvantageous bargain, it will be Si>t 
aside by a Court of Equity. And the same rule applies to persons 
whose minds are enfeebled by habitual intoxication, although not in- 
toxicated when the contract is made. 

7. Same. When 7wt set aside if made under undue infuence. A contract 
will not be set aside on the ground of undue influence, apart from 
fraud, when proper in itself and for the advantage of the party who 
socks to annul it. For example, the conveyance of a man habitually 
intemperate, but not actually crunk, of all his property in trust for 
his wife and children. 

8. Trubt AJfD Trustee. Conveyance in trust for the wife and children. 
If a person who is addicted to the excessive use of ardent spirits, and 
is a spendthrift, makes a conveyance of all his property in trust for 
the benefit of his wife and children, such conveyance will not be set 
aside by a Court of Chancery, although procured by the influence of 
another, and under such circumstances as would have authorized a 
Court of Equity to have annulled it, if the conveyance had been made 
to a stranger. 

9. Same. Same. WJien conveyance absolute. If such conveyance is 
absolute, a Court of Equity will execute the trust for the benefit of 
the wife and children. 

10. Chancery Practije. Rehearing before the Supreme Court. Depo^ 
sitions. Evidence. Parties. After the decree was pronounced by 
the Supreme Court, one of the defendants applied for a rehearing, 
upon the ground that the deposition of an incompetent witness was 
admitted; and the decree settled the rights of persons who were not 
parties to the suit. A rehearing was refused, and the Court held : 

1. That there being no exception in the Court below to the reading 
of the deposition, the evidence was properly heard. And if the testi- 
mony was rejected, the result would be the same. 

2. Although the beneficiaries are not parties to the record, the 
pleadings and proof establish the trust in their favor ; the evidence 
pro and con. has been heard, and if the parties were turned loose to 
litigate anew, the depositions in this cause would be admissible in 
a suit by the cestuis que tniat against the defendant, and in no aspect 
of the case could the latter be benefitted by another contest about the 
property. 



APRIL TERM, 1859. 291 



G. M. Birdsong v. John C. Birdsong et al. 



8. A Court of Chancery cherishes forms no further than they con- 
trihute to the main ohject of its existence, the attainment of substan- 
tial justice. It struggles against technical rules which merely impede 
this object. 

4. The rule requiring all persons in interest to be made parties to 
suits in equit/, is a rule of discretioni founded in the anxiety of those 
Courts to do justice among all the parties having an interest in the 
subject matter, or object of the suit. It is, in most cases, not a right 
of the parties brought before the Court, but rather a rule prescribed 
by Courts of Equity to themselves. 

6. If persons whose interest is apparent are not made parties, they 
may be allowed, if they wish it, to bring forward their claim by pe- 
tition, and have the benefit of the proof already taken, and will not 
be driven to a second contest. 



FROM MADISON. 



This cause was heard at the August Term, 1858, 
before Chancellor Williams, who dismissed the bill. Both 
parties appealed — the defendants upon the ground that 
the Court below excluded certain depositions taken by 
them. 

ToMLiN, and Stephens & Stephens, for the com- 
plainant. 

Alex. McAmpbell, for Price. 

M. & H. Brown, for John C. Birdsong. 

Wright, J., delivered the opinion of the Court. 

The complainant, and the defendant John C, are 
brothers; and the latter is the administrator upon the 
estate of William Birdsong, senior, who was their father, 
and who died intestate^ the 26th of October, 1850. 



282 JACKSON : 



G. M. Birdsong v, John C. Birdso^ig et al. 



This bill was filed on the 3d of April, 1854, for the 
purpose of setting aside a conveyance of the share of 
complainant in the estate of his father, made to the 
defendant, John C, on the 2d day of November, 1850, 
and to obtain an account and decree against the admin- 
istrator and heirs, for complainant's share in the estate 
in favor of his wife and children. Letters of adminis- 
tration were granted to the defendant, John C, on the 
first Monday in November, 1850 — a few days after the 
date of said conveyance. 

This conveyance is evidenced by a deed, absolute 
upon its face, from the complainant, of all his share 
and interest, real and personal in his father's estate; 
and the same purports to be for the consideration of 
$1,000. It appears that John C. executed to complain- 
ant his five notes for the sum of $200 each, due the 
25th of December, 1851, 1852, 1853, 1854, and 1855, 
which have never been paid. And in his answer he 
insists that this was the only consideration for said con- 
veyance, and all he was ever to pay complainant for 
his share in said estate; and that he is absolutely en- 
titled to the same, freed of trusts of every kind; and 
he avers that his purchase of this interest was, in all 
respects, fair and free of fraud. 

This deed was attested by T. B. Richardson and 
H. A. Welch, and proved by them, and immediately 
registered. 

It is charged in the bill, that immediately after the 
death of their father, the said John C. proposed to com- 
plainant to make him a transfer of all his interest in 
his father's estate, with a view, as he said, to enable 
him, the said John, to hold it, and take care of it f<Nr 



APRIL TERM, 1859. 293 

G. H. Birdsong v. John C. Birdsong ei al. 

the benefit of complainant's wife and children; represent- 
ing to complainant that it would be wasted in his (com- 
plainant's) hands, and would do his family no good; 
and that, conscious of his own weakness, anxious to 
provide for his family, and confiding in the honor of his 
brother, and believing that he would act in good faith 
towards him and them, he agreed to the proposition, 
and executed the conveyance aforesaid — not knowing, 
and being incapable of knowing, that it was to have 
the effect of transferring his whole interest away from 
his wife and family, or that it would be used for that 
purpose. 

This allegation, as before stated, is denied in the 
answer; but the defendant, in this connection, states 
that he may have said that complainant would waste 
the 91,000, and that he desired to secure tliat for com- 
plainant's wife and children — that this was his desire, 
and he supposes he said so; but again denies that he 
proposed securing the interest in the estate; admits that 
complainant was wasteful and intemperate at times, and 
poor; but insists he knew his rights. 

The allegations in the bill are sustained by the de- 
position of M. £. Birdsong, a daughter of the com- 
plainant. She proves that John 0. Birdsong came to 
her father on the same evening that the notes were 
executed, and said he intended we (meaning thereby, no 
doubt, the family of complainant) should have our part 
of the estate when it was wound up — that it was a 
trade made not to stand; that he intended to buy them 
some land, and place them upon it; and said, who could 
cheat the children out of a cent ? And the reason he gave 
for doing this was, because he did not want his father's 



294 JACKSON : 



G. M. Birdsong v. John G. Birdfiong et al. 



estate scattered about, and that if it was not for him 
it would soon be gone. As to the notes, he told com- 
plainant not to dispose of them, but that he wanted 
him to keep them until the estate was wound up, and 
he would lift the notes, and replace his part of the 
estate back to him; that the notes were not worth one- 
half or one-third his part of the estate; and that he 
intended to see that complainant's family should have 
their part of the estate. 

She, at the time, was very young, but her story is a 
consistent and natural one, and she is strongly corrobo- 
rated by most of the important facts in the case, and 
by the depositions of B. F. Bond, Jno G. Price, Wm. 
Knight, and others. 

The defendant repeatedly said, for many years prior 
to his father's death, that complainant was a drunken 
fool, and that it would be wrong for his father to give 
him any part of his estate; that he would drink it up 
as soon as he could swallow it, and it would go out of 
the family. 

Complainant is shown, when at himself, to have but 
ordinary capacity, and when drinking, to be incapable 
of business, and easily overreached at all times. The 
defendant spoke of him as a wretch, and that he would 
as soon rob a goose as to cheat him, &c. The proof 
shows him to have been poor, degraded, and destitute. 

The estate of the intestate consisted of some twenty- 
three slaves, land, and other property, to say nothing 
of advancements. 

As to its value, the answer of defendant admits, 

that, at the intestate's death, it was worth from $12,000 

$13,000, and the proof more than sustains it; the; 



APRIL TERM, 1859. 295 



G. M. Birdsong v. John C. Birdsong ei al. 



making complainant's share, which was one-fifth of the 
yalae, at least, (2,500 ; which defendant assumes he 
purchased for $1,000, at one to five years' time — ^less 
than one-third of its value. 

To countervail this proof, and much else of a like 
character to be found in this record, defendant proves 
efforts by complainant to sell to others before he bought, 
and that it is probable, if he had not taken it, others 
would ; that he was not intoxicated on the day the deed 
was executed, though it appears he was just out of a 
debauch; and Richardson and Welch, the attesting wit 
nesses — one of whom drew the deed — and McGregor, at 
whose house it was drawn, are examined, and the sum 
and substance of their proof are, that though they did 
not hear the conversation which preceded and led to 
the trade, yet the deed was executed in their presence, 
and by them attested ; that it was read to complainant, 
who was sober and knew what he was about, and they 
regarded it as a fair trade; and that he stated he 
thought the 91)000 a fair compensation for his share in 
his father's estate, considering his situation, and the best 
he could do for himself and family; and that, when not 
drunk, he was capable of business. And it is further 
shown, that for some time afterwards he recognized the 
validity of the arrangement, and expressed himself satis- 
fied with it, and that defendant would do right with 
him; and in a controversy with Price as to the notes, 
he notified defendant not to pay them to Price. 

The Chancellor decreed for the defendant. We do 
not concur • in this decree- 
It is true that mere inadequacy of price, indepen- 
dent of other circumstances, where the parties stand on 



296 JACKSON : 



G. M. Birdsong v. John C. Birdsong et al. 



equal ground, and deal with each other without any im- 
position or oppression, will not set aside a sale. Inad- 
equacy, of itself, is only a badge of fraud; and it is 
clear that if advantage be taken, on either side, of the 
ignorance or distress of the other, it affords a new and 
distinct ground, and a very great inadequacy may form 
a presumption of oppression. In equity a conveyance 
will be set aside where it is obtained by undue influ- 
ence over a person greatly under the power of another, 
if there is inadequacy of price, or clear ground of in- 
ference that a confidence reposed has been abused, or 
advantage has been taken of incompetency, weakness of 
understanding, or clouded or enfeebled faculties. 

It is not necessary that the influence should be due 
to antecedent or extraneous circumstances ; it may have 
arisen in the course of the same transaction in which 
it was exerted. It is enough to show such a condition 
of dependency from whatever cause, as to raise the pre- 
sumption that the party was unable to protect himself, 
and to justify the interference of the law to protect 
him. 

A conveyance made by a man of weak mind and in 
necessitous circumstances, for an inadequate consideration, 
has been set aside; and where a man unacquainted with 
business and of feeble] character, was induced to sell 
a legacy of $13,000 for $4,600, by means of the in- 
fluence acquired over him by the purchaser, who took 
advantage of his ignorance of affairs and eagerness to 
obtain the money at once, to lead him to believe that 
the legacy was not worth a larger sum in hand, and 
might not be paid for many years — ^the sale was set 
aside. 



APRIL TERM, 1859. 297 

G. M. Birdsong v. John C. Birdsong et al. 

Contracts made by persons under the influence of 
liquor, without being completely intoxicated, are governed 
by the same principles ^hich apply in other cases, where 
one party is in a position to expose him to the exer- 
cise of an improper influence by the other. 

If carried so far that the reasoning power is de- 
stroyed, the contract is void; but when it falls short of 
this, the contract will not be avoided, unless undue ad- 
vantage has been taken by one party, of the condition 
of the other. 

If a party has been led into a hard and disadvan- 
tageous bargain, while excited by liquor, equity avoids 
it. And the same rule applies to persons whose minds 
are enfeebled by habitual intoxication, although not ac- 
tually intoxicated..^ 

But it seem^^a contract will not be set aside on the 
ground of umue influence, apart from fraud, where 
proper in itself, and for the advantage of the party 
who seeks to avoid it; as for instance, a conveyance 
by a man habitually intemperate — ^but not actually drunk 
— of all his property, in trust for his wife and children. 
Chesterfield v. Josener^ and notes, White & Tudor, 420, 
421 ; Hugenenen v. Bosely^ and notes, White & Tudor, 
64, 74. 

These principles are decisive of this case. We are 
satisfied this conveyance was obtained in trust for com- 
plainant's wife and children, and upon no other condi- 
tion can it be allowed to stand. The 91)000 in notes, 
were merely intended to put complainant oS* until the 
estate could be settled and property secured to his wife 
and children, and not intended to be paid, but to be 
restored and the estate fixed on them. Defendant knew 



298 JACKSON: 



G. M. Birdsong v. John 0. BirdBong et al. 



he could not readily sell such notes, nor his share in 
the estate so entangled; and if he did sell the notes, 
he could still save something for his mfe and children. 
We are, moreover, satisfied from this record, that de- 
fendant, in haste, and before administration, or complain- 
ant had time to know the debts or value of the estate, 
managed to become his adviser and friend as to the 
disposition of his share in the estate, to save it — not 
from his creditors, for we doubt if he had any credit 
— ^but from himself and his habits, and for his family 
and children. If so, his conduct was laudable. Why so 
anxious as to his brother's shares-even before his father's 
death? And after his death, to keep off a sale to oth- 
ers? And in this view, the satisfaction expressed by 
complainant with the arrangement, and so much relied 
on by defendant, has no force. The attempt now to 
hold the property by defendant must be regarded as an 
after-thought. 

The transaction with Price is not in the way — ^for 
he disclaims all interest in the notes — and complainant 
has them to surrender to defendant. 

The Chancellor rejected the most material of de- 
fendant's proof, upon the ground of incompetency and 
illegality, and refused to reject certain of complainant's 
depositions, a« to the character of Scarborough, and 
which are not deemed very material ; but we have not 
thought it worth while to go into this, since we think 
if we allow defendant's proof so rejected,] and [reject 
the complainant's so excepted to, the result is the same. 

The wife and children of complainant are not par- 
ties ; but the bill sets up the trust in their favor, and 
without considering whether complainant might not file a 



APRIL TERM, 1859. 299 

G. M. Birdsong v. John C. Birdsong et at. 

bill for the specific execution of the contract between him 
and defendant^ and to set up the trust in their behalf, 
it is enough that we haye power to remand the cause, 
that they may become parties. Code, sec. 3170. 

The decree of the Chancellor will be reversed — the 
91,000 in notes surrendered to defendant, John C. Bird- 
song, and a trust of complainant's entire share in his 
father's estate, established in favor of his wife and 
children. 

- The cause will be remanded to the end the propsr 
parties be made, and that an account of complainant's 
share in the estate of his father be had, in which will 
be embraced the increase since his father's death, hires, 
rents and interest — ^making defendant all just and proper 
allowances — and in this account an enquiry will be had 
as to advancements, and further proof taken on that 
subject ; and as to this matter this Court now makes 
no decision. 

Decree reversed. 



The defendant, John C. Birdsong, since the decree 
was pronounced in this cause, has made application for 
a rehearing: 1st. Upon the ground that M. E. Bird- 
song — a leading witness — is one of the beneficiaries in 
the trust set up and established by the decree, and, 
therefore, is an incompetent witness, because of interest. 

A conclusive answer to this is — that no exception, 
either general or special, to the reading of this deposi- 
on, was made in the Court below, and none can L 



300 JACKSON : 



G-. M. Birdsong v. John C. Birdsong ei al. 



taken here. This rule of practice is settled in Grunn et 
al. V. Mason ei al., 2 Sneed, 637. 

The reason of the rule and the authorities are there 
given, and it is founded in sense and sound policy. 

A further answer to this objection is — that if we 
were to disregard the evidence of this witness altogether, 
the result must still be the same. The other evidence 
in the record demonstrates to our mind, that the con^ 
veyance to the defendant can only be allowed to stand 
as a trust for the wife and children of complainant. 

2d. The next ground assumed for a re-hearing isj 
that the facts constituting the trust established by the 
decree, in favor of complainant's wife and children, 
were not alleged, or in issue in the pleadings ; and, 
therefore, they cannot be noticed by the Court, or 
constitute the basis of the decree. 

This assumption is founded in a misapprehension of 
the state of the pleadings between these parties. It will 
be seen that the existence of this trust is expressly al- 
leged in the bill and denied in the answer, and proof 
pro and con taken upon it« 

It is true the wife and children of complainant are 
not parties, but he sets up the trust in their favor ; and 
the litigation, instead of being with them directly, is 
between complainant and defendant.* 

It may very well be made a question, if complainant 
had not the right to file a bill to enforce the contract 
between him and defendant, out of which was to arise 
a trust in behalf of complainant's wife and children. 
But passing this by, how does the case stand? Here, 
it is palpable, the defendant has been fully heard as to 
this trust and the rights of these parties. The proof, 



APRIL TERM, 1859. 801 

G. M. Birdsong «. John G. Birdsong ei al, 

pro and coUy has been exhausted. Then he has not 
suffered for want of an opportunity to adduce evidence 
of his defence. Then why, as to him, have a new liti- 
gation. If the wife and children of complainant were 
to file a second bill, or become parties by an amend- 
ment, the depositions and evidence already taken, could 
be used against defendant. It is not like the case of 
a judgment, which requires — ^to make it evidence — that 
there be mutuality between the parties. As to deposi- 
tions the parties need not be the same. If the issue 
be the same, and the party against whom the proof is 
offered has been allowed a chance to cross-examine, that 
is enough. 1 Greenl. £v., sec. 553. 

It is clear, here, that as between complainant and 
defendant, the latter has no right to hold this estate. 
A stronger case against him, to our mind, can hardly 
be stated. 

Then there can be no contest between complainant 
and his wife and children, because the bill itself sets 
up the trust in them ; and as between him and them 
admits the right to be in them, and so is the proof. 
Then what ought a Court of Chancery to do in such 
a case ? Put theso parties out of Court and send them 
to a second and new contest over this estate? If such 
an objection as this were allowed, would it not be 
purely technical? 

A Court of Chancery cherishes forms no further then 
they contribute to the main object of its existence, 
the attainment of substantial justice. It struggles against 
technical rules which merely impede this object. It is 
enabled from its mode of practice to see, from time to 
time, that necessary parties are brought before it ; and 



802 JACKSON : 



G. M. Birdsong v. John C. Bird song ei aL 



this it can do, at almost any stage of a suit. 5 Hum., 
318, 319. 

The general rule, requiring all persons in interest to 
be made parties to the suit, is, in most cases, not, in 
any just sense, a right of the parties brought before 
the Court, but rather a rule prescribed by courts of 
equity to themselves in the exercise of their jurisdiction, 
founded upon their notions of public policy, or public 
convenience. It is, in a great measure, s rule of dis- 
cretion, founded in the anxiety of those Courts to do 
justice among all the parties having an interest in the 
subject matter or object of the suit, whether that 
interest be mediate or immediate, present or future, for 
the purpose of suppressing future controversy and liti- 
gation. Story's Eq. PL, sec. 135 a. 

Accordingly, if the ceatuis qiie tru9t or beneficiaries 
should not be made parties to the suit, and their inter- 
ests are apparent, a Court of Equity will sometimes, as 
a matter of indulgence and to prevent further delay and 
expense, allow them (if they wish) to bring forward their 
claims by petition, in order that their rights may be 
protected. Story's Eq. PL, sec, 208. 

The plain meaning of the authority is, that they may 
be allowed to intervene and have the benefit of the 
proof already taken, and will not be put to a new bill 
and a second contest. 

The ground upon which the decree goes, settles that 
defendant is the trustee to complainant's wife and chil- 
dren. He is a party, and the case is settled against 
him. The re-hearing is, therefore, refused. 

Re-hearing refused. 



APRIL TERM, 1859. 808 



B. P. Marr et al. v, John Marr et al. 



R. P. Mark et al. v. John Marr et ah 



1. Will. Holographic, What meant hy ** valuable papers." Act of 
1784, eh, 10, J 5. Before the passage of the act of 1784, no devise of 
land was good unless it was signed and witnessed by two subscribing 
witnesses. This act made an exception in favor of holographic wills. 
The first requirement of the act is, that the will shall be found among 
iha ** valuable papers or effects" of the deceased, or shall have been 
lodged in the hands of some person for safe keeping. "Valuable 
papers," as used in this act, consist of such as are regarded by the 
testator as worthy of preservation, and, therefore, in his estimation, 
of some value. They are not confined to deeds for land, bills of sale 
for slaves, obligations for money, or certificates of stock. Any others 
which are kept and considered worthy of being taken care of by the 
owner of them, are valuaUe in the sense of the act of 1784. 

2. Same. Same. What ** found" implies. To be ** found among his 
valuable papers," implies that it must have been placed there by the 
writer, or with his knowledge and assent, not surreptitiously by some 
other person ; and so deposited with the intention at the time, that it 
should be his will. 

8. Same. Same. Not every paper thus deposited and found is a will. 
All the requirements of the act of 1784 may be complied with, and 
the paper invalid as a testament. The paper thus found must be a 
will. And if a will it may be attacked, as other testamentary papers, 
for want of competency of the testator, for fraud and undue influence, 
or that it was never legally assented to by the maker, as a complete 
and finished act ; not signed — with an attesting clause, but not wit- 
nessed, &c. 

4. Same. Same. How revoked. Declarations of th€ testator. When 
the requisites of the act of 1784 have been complied with, it amounts 
to a publication of the will, and gives it the same dignity as if it had 
been regularly executed and witnessed, and requires something more 
than verbal declarations to revoke it. There must be some act done, 
clearly indicating an intention of revoking the will — sftch as cancel- 
lation, destruction, removal from the place of deposit, or reclamation 
from the hands of the person with whom it may have been lodged. 

6. Same. Same. Eviderice. Declarations of the testator. The declara- 
tions of the testator are admissible as evidence for the purpose ot 
showing whether the requirements of the law exist, so as to establish 



a04 JACKSON : 



B. P. Marr et al, v, John Marr tt aL 



the paper. propounded, as a will; hut when these are estahlished h}" 
proof, such declarations cannot have the effect to defeat the testamen- 
tary character of the paper, or to work a revokation of it, as a will. 



FROM WEAKLEY. 



The venue in this cause was changed from Obion to 
Weakley county, and a trial had at the October Term, 
1858, Fitzgerald, J., presiding. Verdict and judgment 
against the will. The plaintiffs appealed. 

I. G. Harris, Freeman, Somers, and Cochran & 
Enloe, for the plaintiffs, relied upon the following 
authorities : 

Act of 1784, ch. 10, § 5; Crxitcher v. Crutcher^ 11 
Hum., 885 ; 1 Greenl. Ev., § 200 ; 3 Yer., 25 ; Allen v. 
Huffy I Yen, 409; Young v. CrowdeVy 2 Sneed, 156; 
Tate V. Tate, 11 Hum., 465 ; 1 Swan, 119 ; 1 Sneed 1. 

M. B. Hill, Etheridgb and Gardner, for the de- 
fendants. 

Carutaers, J., delivered the opinion of the Court. 

This case is now before us the second time. It is 
a suit for the probate of the will of G. W. S. Marr, 
deceased, upon an issue of devisavit vel non in the Cu:- 
cuit Court of Obion. This appeal in error is to reverse 
a judgment against the validity of the will, upon the 
new trial granted to the plaintiffs at our last term. We 
then reversed upon errors of law in the charge of the 
Court, in relation to the effect to be given to a label 



APBIL TERM, 1.859. 805 

R. P. Harr et tU. r. John Marr et al. 

on the bundle of papers in which it was found, as maj 
be seen by the report of the case in 5th Sneed. And 
now the error assigned, is supposed to be found in this 
clause of the charge: ''But if you find that he kept 
it in a manner that satisfies you that it was a paper 
not cared for, but repudiated by him, or you are other- 
tptse satisfied, than from the manner of keeping, that it 
was a repudiated paper, and not intended by him to 
operate or have effect as his will, then you will find for 
the defendant.*' 

Again, in reply to a request by the plaintiff's coun- 
sel, to charge, [that ''if G. W. L. Marr, the deceased, 
prepared the paper in dispute, and placed it among his 
valuable papers before his death, that the law presumes 
it is his will, unless he revoked it." The Court said, "if 
the said paper was written by Marr, and placed among 
his valuable papers in his lifetime, it would be the will 
of said Marr, unless he afterwards revoked it, or repu- 
diated it, and did not keep it with intent and pur- 
pose, that it should operate as his will, as before 
charged." 

The Court rejected an application by the counsel, to 
instruct the jury that '* G. W. L. Marr could not have 
revoked the paper writing here as his will, if he pre- 
pared it and placed it among his valuable papers or 
effects, unless he did so by a paper writing of the same 
dignity of the one propounded." 

Much difScuIty has been experienced by the Courts 
of this State and those of North Carolina, in the con- 
struction of the act of October, 1784, ch. 10, sec. 5, 
providing for holographic wills, and prescribing the re- 
quisites for their validity. Before that, no will for land, 
20 



806 JACKSON : 



R. P. Harr et al, v. John Harr et aL 



iras good unless it were signed and acknowledged before 
two subscribing witnesses. This act made an exception 
in favor of wills of this description. The first require- 
ment is, that '^ where any will shall be found amongst 
the valuable papers or effects of any deceased person, 
or shall have been lodged in the hands of any person 
for safe keeping," &c. 

What is meant by valvahle papers? No better defi- 
nition, perhaps, can be given, than that they consist of 
such as are regarded by the testator as worthy of pres- 
ervation, and, therefore, in his estimation, of some value. 
It is not confined to deeds for land or slaves, obliga- 
tions for money, or certificates of stock. Any others 
which are kept and considered worthy of being taken 
care of by the particular person, must be regarded as 
embraced in that description. This requirement is only 
intended as an indication on the part of the writer, 
that it is his intention to preserve and perpetuate the 
paper in question as a disposition of his property ; that 
he regards it as valuable. This is the only point in 
the requirements of the statute, about which there was 
any controversy in this case, all the others having been 
fully made out. 

But the Courts have, however, properly held, that even 
if these requirements all concur, yet, the paper may not 
be Talid as a testament. It is to be a ^^ will ** thus found ; 
and not every paper so deposited, is, necessarily to be 
established, though it may be in proper form, in the hand 
writing, signed, &c. It is still open to attack on vari- 
ous grounds ; such as, that the testator was of unsound 
mind, operated upon by undue infiuence, fraud, or duress, 
or that it was never legally assented to by the deceased 



APRIL T£RM, 1859. m 



R. P. Harr et al, v. John Harr et aL 



afi a complete and finished act to any extent. To be 
'< fonnd among his valuable papers/' implies that it must 
have been placed there by the writer, or with his 
knowledge and assent, not surreptitiously by some other 
person, and so deposited with intent and purpose at the 
time that it should be his will. But when all that is 
done in conformity to the statute, it is equivalent to a 
publication ; it requires something more than verbal dec- 
larations to revoke or defeat it. There must be some 
act done indicative of a change of purpose, such as the 
cancellatiorty destruction, or removal from the place of 
deposit, or reclamation from the hands of the person with 
whom it may have been lodged. 

Chief Justice Best, in 15 Con. Law Rep., 491, in 
reference to a witnessed will, said: '^It has been in- 
sisted that declarations of the testator were admissible in 
evidence, to show that the will he had executed was not 
valid; but no case had been cited to support such a 
position, and we shall not, for the first time, establish 
a doctrine which would render useless the precautions of 
making a will ; for if such evidence were admissible, some 
vritness would constantly be brought forward to set aside 
the most solemn instruments. Such a doctrine would be 
not only in the highest degree inconvenient, but contrary 
to the first principles of evidence, according to which 
the will itself is the best evidence which the nature of 
the case supplies." The writing and signing by himself, 
and the continued deposit among his valuable papers or 
effects, must have been intended by the Legislature to 
have the same effect as a signing, and acknowledgment 
before witnesses. Both amount to a publication in the 
legal sense, and the latter mode is certainly as solemn 



808 NASHVILLE : 



R. P. Marr et al. v. John Marr ei al. 



and deliberate. In both cases it is under his power till 
his death, and can only speak from that time. If he 
can alter, destroy, or change it in the one case, it can 
be as easily done in the other. It is more easy in the 
latter case to give effect to a change of mind, for by a 
simple removal from the place of deposit to a place 
where there are no papers or effectSy or none of any 
valucy it would be invalidated, if so " found " at his 
death. But in case of a witnessed will, it must be can- 
celled, destroyed or revoked, expressly or impliedly, by a 
writing of equal solemnity. A holographic will is of the 
same dignity when the things prescribed by the statute 
are done. Yet, on account of the requirement in rela- 
tion to the place of deposit, the easy additional mode 
of rendering it invalid, exists, as it must not only be 
placed by him, but ^' found," after his death, among 
papers or things deemed valuable. This change of itself 
is a sufficient indication, under the statute, of a mind to 
revoke, or rather it displaces an essential ingredient in 
the solemnities required. 

It is certainly not conclusive in favor of the paper 
that it is in the form of a testament, perfect in all its 
parts, written, signed, and found as prescribed. It may, 
after all that, not be his will, as before stated. It may 
be shown that he never intended it to be his will. Buc 
how is that to be shown ? what kind of proof is admis* 
sible on that point? Upon the charge in relation to 
that question alone, extracted as a matter of law, our 
decision must turn in this case. 

True, it is competent for the jury, in coming to a 
conclusion upon this question of fact, for the intent is 
an important fact in such a case, to look to all the cir- 



APRIL TERM, 1859. 809 



R. P. Marr et al. v. John Marr et al. 



enmstances, both " intrinsic and extrinsic ;" but ^hat 
kind of circumstances? Such as the general rules of law 
prescribe in such cases, as indicative of the intention that 
the paper shall be his will, and no others. Rights de- 
pendant upon the validity of wills should be as carefully 
guarded as those derived under deeds, or the statutes of 
descent and distribution, but not more so. In both cases 
they are questions of title to property, and are entitled to 
equal favor. 

If it appear in the body of the instrument that it is 
incompleie, unfinished, not signed, with an attesting 
clause, but no witnesses, without testamentary form, these 
are intrinsic circumstances, against the intent that the 
paper should be a final disposition of his property, and 
tend to raise a presumption that it is not his will. But 
these circumstances may be rebutted. 

But what is the character of extrinsic circumstances 
to which reference may be had in determining the ques- 
tion of intent, in cases falling under this statute, and 
where its requirements have been fully complied with? 
Some of them have been before stated as grounds of 
attack. 

The declarations of the party with reference to the par- 
ticular paper, would be proper to be considered, but enti- 
tled to very little, if any, weight, without some act show- 
ing an intention to change what he had deliberately done 
in full compliance with the statute. Having thus shown a 
settled purpose that such would be his will, there must be 
something more than simple declarations, if the paper, in 
his own hand writing, and under his own control, be 
Still permitted to remain in the proper deposit, undis- 
turbed by him, until his death. This law prescribes 



310 JACKSON : 



R. P. Marr et id. v. John Marr et <d. 



the requisites for a valid will, and when these are all per- 
formed in strict conformity thereto, can it be allowed, upon 
any proper principle, to countervail and defeat them by 
mere words and declarations, unaccompanied by any act? 

It is not easy to ascertain by what motives a man 
may be influenced to make such declarations, or even to 
make overtures for the writing of another will, which 
was not carried out. All such facts must rest in the 
memory of witnesses, and are liable to be misunder- 
stood ; or, if not, they may have been done or said un- 
der some momentary impulse, or crude and unsettled pur- 
pose. But the deliberate acts of writing the paper him- 
self in testamentary form, and depositing it with other 
things of value, with the act of assembly before him, 
prescribing the effect in law, of what he was doing, 
afford a safe ground for ascertaining his wishes in rela- 
tion to his property after his death. If these solemn and 
deliberate acts can be frustrated by evidence of loose 
or casual declarations, that he had no will, or that he 
wanted some one to write a will, or that he had changed 
his purpose and intention, without any act done to carry 
out such purpose, which was so easy of accomplishment, 
if seriously entertained, there would be no certainty in 
this mode of disposing of a man's property. 

The statute framed with so much care and precau- 
tion, if this were so, would have signally failed to answer 
the purpose for which it was designed. 

We will not say that verbal declarations are not ad- 
missible as evidence in these cases for some purposes. 
In a case like this, they may be looked to as circum- 
stances to aid in the determination of the question so 
much controverted; whether the paper was deposited and 



APRIL TERM, 1859. 311 

R. P. Marr et al. v. John Marr et al. 

foand amoDg his valuable papers or effects, but not of 
themselyes, to work a revocation. They may tend to 
illustrate the original intent, but not to show a change 
of that purpose which is established by the fact of a 
legal and continuing deposit of the paper. In the case 
of Crutcher v. CrutcheVy they were proper, because the 
doubtful question there, was, whether the papers then 
found were even intended to be testamentary, as they 
were imperfect, unfinished, and not in the form of tes- 
taments, though written by himself. 

When the jury were told by his Honor in this case, 
that ^Mf they were otherwise satisfied than from the 
manner of keeping it, that it was a repudiated paper, and 
not intended to operate or have effect as his will," 
they should find for the defendants; that is, that it was 
not his will, what else could they have understood, but 
that they were at liberty to rely upon his subsequent 
declarations, that he had no will as suflScient to defeat 
it, although it remained till his death, properly deposited 
and unrevoked by any act of his ? The tendency of the 
whole charge, is to authorize the jury to recognize a 
mere parol revocation by a simple change of intent, 
without any act done to evince that such was his settled 
purpose. 

The word repudiated, in the connection in which it was 
used, was not very appropriate to convey the legal idea 
to the jury, and was well calculated to give them a 
wrong conception of their duty upon the issue submitted 
to them. Wills, which should be the most solemn act 
of a man's life connected with his property, are not to 
be thus lightly regarded when made in conformity to the 
law. 



8X2 JACKSON : 



Jobn Drewry v Lemuel B. Vadea et al. 



It may be that this will is in conflict with public 
sentiment, and against our ideas of equality and justice 
among his children, or that it was made under a state 
ef feelings towards them, which was afVerwards changed; 
but still the case must be governed by general rules 
in its investigation and determination. The danger is, 
that a wrong principle established to accomplish what 
seems to be right in one case, may defeat right and 
justice in many others. All cases, therefore, must be 
governed by the same general rules and principles. 

We feel constrained by these considerations, to again 
reverse the judgment in this case, and grant a second 
new trial. 



John Drewry v. Lbmukl R. Vaden et al. 

Summary Proceedinq. Jurisdiction, Circuit Court, Justices of the 
peace. Acts of 1801, 1823, and 1885. Code, J 8691. By the provis- 
ioBS of the acts of 1801, 1823, and 1835, and the 8591 section of the 
Code, the Circuit Court and justices of the peace have concurrent ju- 
risdiction of motions against officers for failing to pay over money 
collected by them, and for the non-return of executions within thirty 
days. But justices of the peace are confined to cases where the amount 
is within their jurisdiction. The Circuit Court is not limited as to 
amount. 



FROM WEAKLEY. 



The motion was made, and disallowed, at the June 
Term, 1858, Fitzgerald, J., presiding. The plaintiff 
appealed. 



APRIL TERM, 1859. SIS 



John Drewrj v. Iiemuel R. Yfiden et tU. 



Caruthers, J., delivered the opinion of the Court. 

A motion iraa made in the Circuit Court of Weaklej, 
at February Term, 1857, by Drewry, against Vaden, a 
constable of that county, and his sureties, ''for failing to 
return within the time prescribed by law, and paying 
over the money upon an execution which was issued 
and placed in his hands for collection on the first day 
of September, 1853, for $22.72, besides costs, in favoc 
of the said John Drewry, and against S. L. Williams 
and S. Williams, and stayed by W. Faust.'* 

The motion was refused, as appears from the record, 
upon the ground of want of jurisdiction in such a case^ 
as the money had not been collected. We do not so 
understand the statutes. 

By the act of 1801, (Car. & Nich., 180,) the motion 
is given against the constable before the County Court, 
for failure to render the moneys on executions in twenty 
days, if not staid, and in thirty if there be a stay, 
after its expiration, '' unless by his return it shall appear 
no property can be found." Cook's Rep. 267. 

By the act of 1885, (Car. & Nich., 211, § 10,) "all 
judgments by motion, now cognizable in the County 
Court, shall be cognivable only in the Circuit Courts.*' 

Now, by the act of 1801, as we have seen, the 
County Court had this jurisdiction, not only where the 
money was collected, but even where it was not, and 
he failed to show, by his "return," that it could not be 
made. Consequently the same jurisdiction passed to the 
Circuit Court in such cases, and has never been taken 
away. 

In cases where the money was collected and not 



814 JACKSON : 



Jacob F. Fisher v. William Pollard. 



paid over, the act of 1823, (Gar. & Nich., 182,) confer- 
red jurisdiction for the first time upon justices of the 
peace to give judgment by motion. In 1835, the same 
was given to a justice for failure to return in thirty 
days. But this did not oust the Circuit Court of the 
jurisdiction it then had of the same matter, but it was 
concurrent. 

The Code (§ 3591) continues this concurrent jurisdic- 
tion over these motions. Of course this is confined, as 
to the justices of the peace, to cases within their juris* 
diction, but in the Court to any amount. 

Taking these acts altogether, we conclude, contrary 
to our first impression, that the Circuit Court had juris- 
diction to render judgment for a failure . to return an 
execution in proper time, whether the money was col- 
lected or not. 

But not haying the facts fully before us, we reverse 
the judgment, and remand the case for the action of the 
Circuit Court. 



Jacob F. Fiskbr v. William Pollard. 



Wakrantt. When it embraces visible defects. Evidence. A general 
warranty of soundness, whether in writing or by parol, does not extend 
to an unsoundness or defect which is plain and obvious to the pur- 
chaser, or of which he had cognizance. But to exclude a defect or 
disease from the operation of the warranty, it must be of such a char- 
acter or description as to disclose to the vendee, not only the exis- 
ience, but the extent of the defect or disease, and if this is not so, it is 



APRIL term:, 1859. 315 

Jacob F. Fisher v. William Pollard. 

covered by the warranty. And parol evidence to show that the defect 
was obvious, or that the seller disclosed the unsoundness at the time 
of the sale, is admissible, notwithstanding the warranty may be in 
writing. 



FROM DBCATUR. 



This cause was heard at the July Term, 1858, 
Walkbr, J., presiding. Verdict and Judgment for the 
plaintiff. The defendant appealed. 

M. k H. Brown, for the plaintiff in error. 

Maxwell and Doherty, for the defendant in error. 

Caruthers, J., delivered the opinion of the Court. 

In August, 1857, Pollard sold to Fisher a slave 
named Bill, for $800, and a certain iron gray horse, 
provided the slave, then runaway, could be obtained in 
possession by the vendee. In that event the money was 
to be paid, and the horse delivered, and ''said Fisher 
agrees to make all things right as to the horse above 
spoken of, as to soundness in every respect.'* Such is 
the contract as set forth in a writing that day signed 
by both parties. The events contemplated, all, very soon 
after, happened. The money was paid, tbo horse delivered, 
and a bill of sale executed for the slave. In March, 
1858, this action was instituted for unsoundness in the 
horse, and a verdict and judgment for $150 against the 
defendant. 

There is nothing in the objection, that as this trade 



316 JACKSON: 



Jacob F. Fisher v. William Pollard. 



was conditional, that is, only to take eflfect in the event 
the slave was reclaimed, the written warranty of the 
soundness of the horse was not obligatory. The con- 
tingency having happened, it took full effect as if it 
had been at first without condition. So, the contract of 
warranty was binding. 

The main controversy in the case, upon the trial, 
was as to the extent of the warranty. It was conceded 
that the horse was unsound in one or both of his eyes; 
but this, it was insisted was visible to the most casual 
observer, and was, in fact, well known to the vendee, 
and consequently not covered by the warranty. How the 
facts were in that respect is not so material now, as 
the . jury have passed upon them, but the question be* 
fore us is, whether the law was correctly charged by the 
Court on that doctrine. 

It is well settled that a general warranty of sound- 
ness, whether in writing or parol, does not extend to 
an unsoundness or defect which is plain and obvious to 
the purchaser, or of which he had cognizance. 1 Par, 
on Con., 460, (top,) and n. i. ; 2 Hum., 308. This is 
upon the ground that it will not be presumed that the 
parties intended to embrace in the general terms em- 
ployed in the contract, imperfections well known to both, 
or so plainly visible and obvious as that they must be 
presumed to have been known by the vendee. This 
rule is always applied for the purpose of restricting the 
general words used, to the manifest intention and under- 
standing of the parties. It would be absurd to suppose 
that the seller intended to make, and the vendee sup* 
posed he was receiving, a warranty against defects well 



APRIL TERM, 1859. 817 



Jacob F. Fisher v. William Pollard. 



known to both parties, or so apparent and visible as to 
be obvious to ordinary observation. 

The case of Long v. HickSy 2 Hum., 805, decides, 
that " a written warranty does not extend to defects 
which are visible, or of which the vendee is informed 
at the time of sale." The case before the Court, to 
which this principle was applied, rested upon the correct- 
ness of the charge to the jury, in these words: ^^That 
if the negro was unsound at the date of the warranty, 
there was a ^breach, and that the}/ were to diiregard the 
testimony as to the knowledge of the plaintiffs in refer- 
ence to the unsoundness.*' The Court had rejected all 
proof of the knowledge of the purchaser of the unsound- 
ness. It is stated in the opinion, in that case, that 
the proof shows ^'that the unsoundness was so obvious, 
that any one who had ever seen a negro might discover 
it by casual view;'' and the purchaser, in reference to 
it, said he did not care, as the woman was worth the 
money he was paying for both. That decision was cer* 
tainly correct, and so is the rule laid down in reference 
to it. That case was fully recognized in the charge 
now before us. 

But the character of the known or patent defects, 
which, according to this principle, are excluded from the 
warranty, is another question. The want of a tail, or 
ear, or limb, are certainly excluded, but any other per* 
manent defect or unsoundness known or visible, would 
likewise be embraced by the rule. But if it is made 
known, or seen, that there is some defect in the eye, 
or a splint on the leg, without present lameness from 
it, but afterwards the eye went out from the injuries, or 
the horse became lame from the effects of the splint^ 



818 JACKSON : 



Jacob F. Fisher v. William Pollard. 



yet the warranty of soundness would cover those defects, 
because the extent of the disease or defect was not 
known. The principle seems to be, that to exclude a 
defect from the operation of a general warranty of 
soundness, upon the ground that it is known to the 
purchaser, or might have been because of it being plain 
and obvious, it must appear that the vendee was not 
misled as to its character or extent. The fact that a 
slave has a cough, or doubtful indications of a cancer, 
white swelling, dropsy, or any other disease, and this 
known to the buyer, does not save the seller from the 
obligations of a general warranty of soundness, if these 
appearances and indications should turn out to be the 
incipient stages of a permanent disease. 1 Par. on Con., 
460, n. (i), and cases there cited. To exclude a defect 
or disease from the operation of the warranty, it must 
be of such a character or description, as to disclose to 
the vendee not only the existence, but the extent of 
the defect or disease, and if this is not so, it is cov- 
ered by the warranty. 

To illustrate by the case in hand. Some defect in 
the eye of the horse was not only made known, but 
was visible ; but it was said by the vendor it resulted 
from an injury recently received by a blow, and its ex- 
tent was not declared, nor could it be discovered. This 
sort of case is covered by the warranty, even though 
there be no fraud. 

The part of the . charge particularly objected to is 
this, " if a horse is sold with a written warranty of 
soundness, the vendor could not protect himself from an 
action by introducing parol proof to show that he dis- 
closed the unsoundness at the time of the sale, and that 



APRIL TERM, 1859. 819 



Jacob F. Fisher v. William Pollard. 



the vendee took the horse at his own risk." Proof to 
show these facts was offered and rejected. We are not 
ahle to reconcile this position in the charge to the 
general rule, that defects known to the vendee are not 
covered by the warranty. The rule stated in Long v. 
Micks is, that a written warranty does not extend to 
" defects of which the vendee is informed at the time 
of sale,*' If the writing specified that the eyes or the 
limbs were sound, or that the animal was free from the 
glanders or any other specified disease, then it would 
not be admissible to prove in the face of the writing, 
that such disease was made known or excepted; the rule 
would be the same if the warranty was in parol. But 
when the warranty is in general terms, we think the 
law is too well settled to be now disturbed, that de- 
fects known or visible, are not covered; and, conse- 
quently, proof to establish these facts must be compe- 
tent. The object of the rule is, not to defeat or con- 
tradict the contract, but to define and explain it ; not 
to frustrate the intention of the parties, but to ascer- 
tain what was meant by them to be covered by the 
undertaking of the vendor. The rule itself would seem, 
at first view, to infringe upon other established princi- 
ples, but with this explanation of it, perhaps it does 
not. At all . events, it is fixed and settled, whether it 
be consistent with other rules, or an exception to them. 

In this particular we think his Honor erred, though 
his charge is, in other respects, very able and correct 
on the doctrine involved. 

From what we see of the case, it is by no means 
certain, that a correct charge, on this point, with the 
proof rejected, would have changed the result ; because, 



320 JACKSON : 



E. R. Kgnew et al. v. 8. W. Cochrane et aL 



it may be that all which was said and made known 
at the time, would only amount to the disclosure of a 
blemish or injui*y that might not have been understood 
by the parties to be permanent, in which case it 
would not be exempted from the warranty, but be cov- 
ered by it, in the event that it turned out to be more 
serious and fatal than the information communicated, or 
the appearance indicated. In other words, the extent of 
the di^ease^ or defect mav not have been obvious or 
made known, and if not, as we have seen, it would 
still fall under the warranty of soundness. 

But the defendant was entitled to the benefit of his 
proof on this point, before the jury, on a correct 
charge. 

For this error, the judgment will be reversed. 



E. R. Egnkw et. ah v. S. W. Cochrane et ah 



1. Laws iw Force. What portions of the law of North Carolina in 
force. Cession act. Constitution of 1796, and 1834. By the cession 
act, the laws in force and use in the State of North Carolina at the 
time of its passage, were to be and continue in force within the ceded 
territory until repealed or altered by the Legislature thereof. And 
by the Constitution of 1796, it was declared that all the laws then in 
force and use in said territory, not inconsistent with it, should con- 
tinue to be in force and use in this State until they should expire, bo 
altered, or repealed by the Legislature. The Constitution of 1884 
has a clause to the same effect. 

2. Land Law. Entry and entry taker. Jet of 1117 , ch, 1, 2 18 By 
the Act of 1777, ch. 1, { 18, if any entry taker is desirous of making 
any entry of lands in bis own name, such entry shall be made in its 



APRIL TERM, 1859. 321 



£. R. Egnew ei cU. v. S. W. Cochrane ef al. 



proper place before a justice of the peace of the county not being a 
surveyor or assistant, which entry the justice shall return to the 
County Court at its next sitting, &c. ; and every entry made by, 
or for such entry taker, in any other manner, is illegal and void, and 
any other person may enter, survey, and obtain a grant for the same 
land. 

8. Same. Same. Sanve, Not repealed. The 18th section of the act of 
1777 has not expired or become obsolete by non-user, nor changed by 
practice and usage; neither has it been repealed by the act of 1796, or 
by the 6th section of the act of 1801 , ch. 3, or by the act of 1806, ch, 1, 
or bv the act of 1819 — said section of the act of 1777 is in full force. 

4. Same. Same, Same. Applicable to lands south and \ctst of the Coti- 
gressional Reservation Line. The 18th section of the act of 1777 is 
applicable to, and embraces that portion of the State south and west 
of the Congressional Rcbervation Line. 

5. Same. Same. Common law. Upon common law principles, the 
entry taker cannot make an entry in hie own name, before himself, 
because it is against public policy. 

i\. Same. Same. Question reserved. Is a grant obtained by the entry 
taker, upon an entry before himself, to be regarded as void and open 
to attack in a Court of Law, or only voidable at the suit of the party 
aggrieved in a Court of Equity? 

7. Same. Same. Same. What would be the effect of a purchase from 
the grantee thus obtaining a grant upon his own entry, and can a 
person holding a younger entry and grant call in question the pri(>r 
grant of the same land to the entry taker ?* 



FROM OBION. 



The bill was dismissed upon demurrer, by Chancellor 
Williams, at the February Term, 1858. The complain- 
ants appealed. 



*It will, perhaps, be found, upon a close examination of the opinion, 
that this case was decided upon the principles settled in the case of Fo/fr/ 
et al. V. HUl; and the syllabus contains principles that are not, authorita- 
tively, settled by the Court. 

21 



322 JACKSON : 



E. R. Egnew et.al. v. S- W. Cochrane et al. 



W. P. Smith, for the complainants. 

James Davis and A. B. Enloe, for the defendants, 
the latter of whom said : 

It will be seen that complainant's entries were made 
under the act of 1819, ch. 1, and subject to the limi- 
tations of the act of 1823, ch. 35; and that defendant's 
entries were made in the intervening time, between the 
expiration of the extending act of 1850, ch. 138, and 
the enacting of the extending act of 1851, ch. 326, 
and, therefore, the defendant has a good title to said 
lands. Vaughn ^ Brown v. ffatfieldy 5 Yer., 236; 
Williamson v. Throopj 11 Hum., 265 ; Sampson v. Taylor ^ 
1 Sneed, 600. 

But it is alleged that defendant, Cochrane, was, at 
the date of his entries, entry taker of Obion county, 
and said entries were made without complying with the 
provisions of the act of 1777, ch. 1. The 18th section 
of said act prescribes the mode of making entries by 
entry takers. 2 H. & Cobb, p. 17, &c. 

The act of 1777, ch. 1, is an act of the North 
Carolina Legislature, and only in force in this State by 
virtue of the eighth condition of the Cession Act of 
1789, ch. 3, § 1, (II. & Cobb, 7,) and only remained in 
force until repealed, or otherwise altered. 

The Constitution of 1796, art. 10, § 2, provides that 
all laws and ordinances now in force and use, &c., &c., 
should continue until they shall expire, be altered, or 
repealed. The Constitution of 1834, art. 11, § 1, makes 
the same provision. N. & C, p. 59. 



APRIL TERM, 1859. 828 

£. B. Egnew etal, v. S. W. Cochrane ei al. 

Hence, it will be seen, that the laws of North 
Carolina were only temporarily in force and use in this 
State. 

The Tennessee Legislature, by the act of 1801, ch. 
^9 § 69 prescribes entirely a different mode of making 
entries by entry takers, than the mode prescribed by 
the 18th section of the act of 1777, ch. 1. Scott's Re- 
visal, p. 761. 

The act of 1777, ch. 1, requires the entry taker to 
make his entry before a justice of the peace, and it 
was made his duty to return said entry to the County 
Court, &c. The act of 1801, ch. 8, required the entry 
taker to make oath that the claim, &c., &c«, was just, 
&c., before a justice of the peace, and said justice of 
the peace was required to subscribe his name officially 
to said entry. The entry taker performed every other 
duty in relation to said entry, as he did in case of 
other entries. 

It is insisted that the act of 1801, ch. 8, repealed 
the act of 1777, ch. 1 ; and being a foreign law only 
in use temporarily, when once repealed, is forever gone, 
without special enactment reviving said law. 

Again, it is insisted that the act of 1777, ch. 1, 
is repealed by the act of 1806, ch. 1, which act pre- 
scribes another and different mode of entering lands. 
Said act of 1806, abolishes the offices of county entry 
taker and surveyor, and establishes in their stead the 
office of principal surveyor, who acts as entry taker, and 
makes no distinction, in the mode of entering, between the 
entry taker and other enterers ; and the 37th section of 
said act in terms repeals the act of 1801, ch. 8, § 2. 
H. & Cobb, 2d vol., 44, &c. 






324 JACKSON : 



E. K. Egnew et al, v. 8. "W. Cochrane et al. 

The modes of entering lands in this State, since 
1801, are in conflict with the act of 1777, ch. 1. A 
repeal or alteration of any of the North Carolina laws 
introduced into this State, is a satisfaction of the Cession 
Act and Constitution. 

The office of entry taker, separate from the office of 
principal surveyor, was wholly unknown to the laws of 
this State from 1806 to 1836, when the office of county 
entry taker was established. 

The act of 1819, ch. 1, introduces a system of land 
laws applicable, alone, to the lands lying in that portion 
of this State south and west of the Congressional Reser- 
vation Line ; and the titles south and west of said line 
have to be procured upon the plan and terms prescribed 
in said act and the subsequent acts of the Legislature. 
Sampson v. Taylor ^ 1 Sneed, 602. 

The mode of entering land prescribed in the act of 
1819, is inconsistent with the act of 1777. 2 H. & 
Cobb, 85. 

The act of 1842, ch. 34, prescribes still a different 
mode of entering lands. The 10th section of said act 
prescribes the form of making entries; the 18th section 
prescribes a penalty for embezzling money received by 
the entry taker. Nicholson Sup., 199, &c. 

There is no act of the Legislature, since 1801, that 
contemplates or requires the intervention of a Court or 
justice of the peace in case an entry taker should desire 
to make an entry for himself. The act of 1844, ch. 8, 
N. Sup., 211, provides still another mode of procuring 
titles to the vacant lands in this State, and makes no 
provisions • for the operation of the act of 1777. 



APRIL TERM, 1859. 825 

£. JK. Egnew et al. v. S. W. Cochrnne ei al. 

If the act of 1777 is unrepealed, it had become 
obsolete by reason of the non-user of said act. 

It has been the constant practice of the principal 
surreyors, since the opening of the county office, for 
the entry takers to make entries in their names, and 
for themselves, without pursuing any other mode than 
was usual and practiced by other enterers; which shows 
the understanding and judgment of the officers of the 
law upon that subject, and shows that the act of 1777 
was not used. 

The legislation for half a century, in relation to the 
making of entries of land, nowhere requires the inter- 
vention of a Court or justice, as prescribed by the act 
relied on by complainants ; which shows that the Legis- 
lature did not consider the act in force, and the uni- 
versal practice of another mode of entering lands by the 
officers (if proper to be considered) shows the same 
interpretation of the law, &c. 



Wright, J., delivered the opinion of the Court. 

The complainants, George R. Egnew and Eleanor 
Maxwell are the heirs of George M. and Jesse W. 
Egnew, deceased. 

On the 24th of May, 1843, they caused an entry to 
be made in their names, in the entry taker's office of 
Obion county, for 166 acres of land, in that county^ 
by virtue of a certificate warrant issued to them on the 
27th of August, 1842. 

On the 3d of June, 1843, they caused two other 
entries to be made in their names, in the same office, 



326 JACKSON : 



£. B. Egnew et dL. v. S. W. Cochrane et cU. 



for lands lying in Obion county — one for 200, and the 
other for 153J acres. 

These entries were also founded upon certificate war- 
rants, issued to them by John S. Toung, secretary and 
commissioner of West Tennessee — the one on the 29th 
of August, 1842, and the other the 20th of April, 
1843. 

All these entries were special, and a valid appropri- 
ation of the land. 

It seems that no grants were issued upon these 
entries; and, on the 15th of September, 1851, the de- 
fendant, Cochrane, by virtue of the fees paid into the 
office, entered the same lands in his name, in the office 
of the entry taker of Obion county, he, at the time, 
being the entry taker for said county. 

In making said entries, he did not pursue the require- 
ments of the 18th section of the act of the State of 
North Carolina, passed in the year 1777, ch. 1. Grants 
have issued to him upon his entries. 

In October and November, 1857, complainants, George 
B. and Eleanor, caused their entries to be surveyed, 
and the plats and certificates of survey, with the proper 
fees, were tendered by them to W. P. Hill, then the 
entry taker of said county, for the purpose of obtaining 
grants upon said entries; but he refused to receive the 
fees, or permit complainants to obtain grants, because 
of the entries in the name of defendant, Cochrane. 

The object of this bill is to divest the legal title to 
these lands out of defendant, Cochrane, and to vest the 
same in complainants, George R. and Eleanor. 

In making his entries, the defendant acted upon the 
assumption that the lands had become vacant by reason 



APRIL TERM, 1859. 827 

£. B. Bgnev et al. v. S. W. Cochrane et at. 



of the hiatus J between the last of August and the 13th 
of November, 1851 — a period of two months and thirteen 
days — in the law, extending the time for making surveys 
and obtaining grants upon entries. 

It is manifest, from reading the bill and exhibits, 
that when he made these entries, he had both actual 
and constructive notice of the prior entries of complain- 
ants, George R. and Eleanor. 

The Chancellor dismissed the bill upon demurrer. 

This decree is erroneous. The entries of complain- 
ants, George R. and Eleanor, being founded upon North 
Carolina land warrants, the case comes directly within 
the decision of this Court, made at the present term, 
in Fogg et al. v. Sill and Williams. 

We need only refer to the opinion of the Court in 
that case, as decisive of this, without again stating its 
principles. 

Another question is, whether Cochrane, being the 
entry taker, could, legally, make these entries for him- 
self. The act of 1777, ch. 1, § 18, above referred to, 
provides that if any entry taker be desirous to make 
any entry of lands in his own name, such entry shall 
be made in its proper place before a justice of the 
peace of the county — ^not being a surveyor or assistant — 
which entry the justice shall return to the County Court 
at their next sitting; and the County Court shall insert 
such entry, and every entry made by or for such entry 
taker in any other manner than is herein directed, shall 
be illegal and void, and any other person may enter, 
survey, and obtain a grant for the same land. 

It is argued that this section of the act of 1777 — 
if it ever was the law of this State — has become obsolete. 



328 JACKSON : 



E. R. Egnew et al. v, S. W. Cochrane et al. 



or been repealed, and, in any event, is inapplicable to 
that portion of the State which lies south and west of 
the Congressional Reservation Line. It seems not to have 
been considered as repealed or obsolete, by Messrs. Hay- 
wood & Cobb, and is preserved in their Revisal of the 
Statutes of Tennessee, and not embraced in the ^^ table 
of repealed and obsolete laws." 2 Haywood & Cobbs' 
Rev., 20, 190. 

It is clear that it originally applied to the entire 
vacant territory of the State of North Carolina, extend- 
ing as far west as the Mississippi river, and including 
these very lands. Acts 1777, ch. 81; 1783, ch. 2, § 3, 
(1 Scott's Rev., 221, 267 ;) 2 Meigs^ Dig., 662. And it is 
equally plain that it was in force and use in the State 
of North Carolina at the time of the passage of the 
Cession Act of 1789. Tyrrell v. Mooney, 1 Murphey, 
375, 401 ; Terrell et ah v. LogaUj 3 Hawks., 319. And, 
therefore, became a law of the ceded territory, and of 
the State of Tennessee upon the adoption of the Con- 
stitution of 1796. 

The Cession Act provides that the laws in force and 
use in the State pf North Carolina at the time of its 
passage, shall be, and continue in full force within the 
ceded territory, until the same shall be repealed, or 
otherwise altered by the legislative authority of the said 
territory. And in the Constitution of this State, in 1796, 
it was declared that all the laws then in force and use 
in said territory, not inconsistent with the Constitution, 
should continue to be in force and use in this State 
until they should expire, be altered, or repealed by the 
Legislature. The Constitution of 183:i has a clause to 
the same e£fect. 



APRIL TERM, 1859. 829 

£. R. Egnew ei al. v. S. W. Cochrane ei aL 

We are not able to perceive that this section of the 
act of 1777 has expired, or become obsolete. It is, upon 
the face of it, perpetual, without limitation or time fixed 
when it shall cease to be in force; and we are bound 
to give it effect, in every case which falls within its pro- 
visions, until it is repealed by the Legislature. Brice v. 
The State, 2 Tenn. R., 255, 256. It may be that no 
entry has been made under its requirements, even for 
half a century. But how are we to know that? The 
record does not inform ^us how the fact is. And if 
it were so, we do not understand that a statute can 
be repealed by non-user. The want of individual cases 
under it, or the existence of a series of cases in violation 
of it, ought not, we apprehend, to destroy the law. 
Dwarris on Statutes, 9 Law Library, 29, top page; 
Brice v. The State, 2 Tenn. Rep., 255, 256, 257, 258. 

Then has it been repealed, or so altered by the 
Legislature, as to enable us to dispense with its pro- 
visions? It is insisted it has upon various grounds. 

First. It is said the act of 1777, if ever of force, 
being so only by the Cession Act and the Constitution 
of 1796, any alteration of it by the legislative, authority 
of the territory or State, though it did not touch the \9>th 
section would satisfy the Cession Act and the Constitu- 
tion, and put an end to the entire act; and that such 
an alteration having been made as early as 1799 and 
1801, this section is not now in force in this State, nor 
has been for half a century. This position is untenable. 
The repeal of a statute may be total, or only partial, 
according to the will of the Legislature; and we know 
of no difference, in this respect, between the statute of 
the State of North Carolina, made of force here by the 



830 JACKSON : 



E. K. Egnew et al. v. S. W. Cochrane et aL 



Cession Act and Constitution, and one of our own en- 
acting. And that there is no such difference, will appear 
from the authority of Brice v. The State, 2 Tenn. R., 
258, 259. See, also, State v. Patterson, 2 Ird. R., 356. 
Unless the section itself has been repealed, or altered, it 
must be declared in force. 

Secondly. It is said to be repealed by the 6th sec- 
tion of the act of 1801, ch. 3, (1 Scott, 672,) which 
provides that no entry taker in this State shall receive 
or admit any entry or location to be made in his or 
their office, unless the person applying to make such 
entry first make oath that the claim or warrant on which 
such entry or location is founded, is equitable, just, and 
legal, to the best of his knowledge and belief; which oath 
the entry taker is empowered to administer. Nor shall 
any entry taker, for himself, make any entry but on 
oath as aforesaid, before some justice of the peace of his 
county, which justice shall subscribe his name officially to 
such entry. We perceive no conflict between these two 
sections, and are of opinion they may both stand together. 
Dwarris, 9 Law Lib., 31. It certainly was not the in- 
tention, as we think, by anything in this act, to super- 
sede the requirements of the 18th section of the act of 
1777. And if it had been, the former act is expressly 
repealed by the 37th section of the act of 1806, ch. 1, 
(1 Scott, 305,) and thereby the 18th section of the act of 
1777 is revived. Dwarris, 9 Law Lib., 32. 

Third. The system of obtaining grants to land 
through the offices of county entry taker and surveyor, 
established by the act of 1777, was changed by the act 
of 1806, ch. 1, to the district system, and the office 
of principal surveyor created ; and he required to per- 



APRIL TERM, 1859. 831 

£. R. Egnew et al, v. S. W. Cochrane et aL 

form the duties of both the entry taker and surveyori 
This continued to be the case until 1836, when the sys- 
tem of county offices was restored, and an entry taker 
and surveyor for each county again elected. Act 1835-6, 
ch. 48. It is now insisted that this change was a repeal 
of the 18th section of the act of 1777. We do not 
assent to this argument. The necessity for this law is 
the same under either system. It was immaterial in 
whose hands might be confided the duties of the entry 
taker, so long as lands remained to enter the propriety 
of this law could not be questioned, unless an entry, 
by the entry taker or surveyor, for himself, were alto- 
gether prohibited. 

In an examination of the changes and modifications 
which the land law of this State has undergone, we 
have not been able to discover anything in the act of 
1819, or other legislation of the State, which either 
repeals or alters this section of the act of 1777 ; but 
much to the contrary. And the fact that during all this 
time, while many portions of the system have been 
amended, altered and repealed, even the oath required 
in the act of 1801, a thing closely connected with the 
subject, being expressly repealed, no notice, whatever, 
has been taken of this section — so far from being an 
argument against it — is evidence that the legislature was 
content with it, and purposely omitted its repeal. Dwar- 
ris 9 Law Lib., 50. And it would certainly be going a 
great way to hold that the repeated legislation of this 
State, defining the duties of entry taker in general 
terms, and, evidently, as we think, in regard to entries 
to be made by others, should have the effect of repeal- 
ing the special and particular provision in regard to 



882 JACKSON : 



E. B. Egnew et al. v, S. W. Cochrane el al. 



entries to be made by himself j to be found only in the 
act of 1777. Dwarris, 9 Law Lib., 86. 

Finally. It is argued that it has been the constant 
practice of surveyors and entryj takers south and west 
of the Congressional Reservation Line, to make entries in 
their own names and for themselves — without the inter- 
vention of a court, or justice of the peace, and it is 
believed that not a single instance can be found in the 
reservation, in which the requirements of the 18th sec- 
tion of the act of 1777, have been complied with, al- 
though hundreds of entries have been made by said 
o£Scers in their own names, and many thousand acres 
of land thus appropriated. And it is insisted that this 
practice and luage of these officers, called into action 
when the statutes were new, and acquiesced in for so 
long a time by the whole community, furnish contempo- 
raneous construction, of them binding upon the courts, 
and that serious would be the consequences to hold dif- 
ferently at this day. 

But how do we know anything of the existence of 
this practice and usage ? It is not alleged in the bill, 
or anywhere shown in the record. We cannot judicially 
know it. It is not embodied in any judical opinion or 
public record of which we can take cognizance. Like 
any other fact it must be alleged and proved. 2 Greenl. 
Ev., sees. 248 to 262 ; 1 Id., sees. 4 to 6 ; Smith v. 
WHght, 1 Caine's R., 4a. 

In the cases in 1 Yer., 376, and 1 Cranch., 299, 
to which we have been referred, the evidence of inter- 
pretation was drawn from judicial decisions. But if we 
had evidence of this practice, is it true that repeat- 
ed violations of a law through a series of years, by 



APRIL TERM, 1859. 88S 

E. B. Egnew et cU. v. S. W. Cochrane et al. 

the very parties interested in its infraction, can be re- 
ceived by the courts as material for the application of 
the doctrine of contemporaneous construction? I will 
not saj, without further argument, that usage may not, 
in some cases, be pleaded to assist the Court in the 
construction of a doubtful statute. But certainly it must 
be received with great caution and care taken not to 
transgress the limits of the law. The King v. Miller^ 
6 T. R., 26&. The principle of contemporaneous con- 
struction has been considered applicable to statutes where 
the words are obscure, or doubtful, and generally, we 
believe, has been founded upon the judicial determina- 
tions of the country. An eminent judge has said, that 
great regard ought, in construeing a statute, to be paid 
to the construction which the sages of the law, who 
lived about the time, or soon after it was made, put 
upon it ; because they were best able to judge of the 
intention of the makers at the time when the law was 
made. Dwarris, 9 Law Lib., 42. 

We are, therefore, driven to the conclusion that the 
18th section of the act of 1777, is not inapplicable to 
that portion of the State south and west of the Con- 
gressional Reservation Line, and that it is to be regarded 
by us as in force and use. But it is not necessary, in 
this case, conclusively so to adjudge, though we do not 
see how it is to be escaped. 

Upon common law principles, the entry taker can- 
not, as we think, make an entry in his own name, be- 
fore himself, because it is against public policy. No 
such thing was contemplated, as we are satisfied, any 
where in our landed system. His interest would, in 
many cases, conflict with his duty. Not that there has 



334 JACKSON : 



£. B. Egnew et at, v. S. W. Cochrane et al. 

been anything intentionally wrong in this particular case. 
The high character of the gentleman who filled the of- 
fice forbids any such supposition. But as a rule of law 
founded in public policy, for wise reasons, it cannot he 
Allowed in any case. It is upon the same reasoning 
that a sheriff is not permitted to buy at his own sale, 
or execute his own wril^nor a surveyor to make his 
own survey — ^nor a clerk to take the probate of bis 
own deed. Avery v. Walkery 1 Hawks, 140 ; Greenler 
V. Tate et al.y 3 Dev., 800. 

That the principle is applicable here, we have only 
to examine our legislation. By the act of 1836, restor- 
ing the office of county entry taker, he is to be gov- 
erned by the same law as the surveyors, while acting as 
entry takers, had been, under the act of 1819 and other 
acts. How could he select arbitrators to value improve- 
ments, under the 12th section, to be paid for by him- 
self, in case his own entry conflicted with the settler? 
Or conduct the drawings for priority of entry under the 
16th section? Or, if one or more persons offer to enter 
the same land, at the same time with himself, how couM 
he have the priority between them determined by lot 
under the 17th section? He is to demand and receive 
fees. Sec. 47. Does this mean of himself? By the 
10th section of the act of 1842, ch. 34, the enterer is 
to tender to the entry taker his location, and the same 
is to remain on file twenty days before he records it; 
and if then no person files jif^t reasons in writing against 
it, the entry taker shall record it ; but should jtist rea- 
sons be filed with the entry taker why such entry 
should not be madcy he shall not record the same until 



APRIL TERM, 1859. 385 

E. R. Sgnew ei aX, v. S. W. Cochrane et al. 

the dispute shall be settled. How conld he, in his own 
case^ determine as to the reasons against the entry? 

Under the act of 1843, the entry taker had to dis- 
pose of the public land to the highest bidder, through 
offers to be made him, and the person payin/i^ the most 
for the land become the enterer, and obtained the grant. 
How is it possible here to suppose that the entry taker 
could, himself, be permitted to take and enter any of 
the lands so offered ? Maxwell v. Wallace^ 3 Ird. Eq. 
R., 593. 

But it is useless further to multiply instances. The 
whole current of our legislation, it seems to me, demon- 
strates that he was not to make his own entry before 
himself. 

What is to be the effect upon a grant thus obtained 
by the entry taker — whether it is to be regarded as 
void, and open to attack in a court of law, or only 
voidably at the suit of the party aggriered in a court 
of equity — we need not here decide, because complain- 
ants have the oldest entries, and standing as they do, 
in a court of equity, have a right to have the defend- 
ant, Cochrane, declared a trustee for them, and a legal 
title decreed to them. 1 Mur., 401 ; 4 Dev., 417, 596 ; 
2 Dev. and Batt , Law Rep. 246. 

It seems, however, to have been decided in North 
Carolina to be only voidable. Tyrrell v. Mocney^ 1 Mur. 
401. 

Nor are we called upon to decide as to the case of a 
purchaser under such a grantee, nor whether one holding a 
younger entry and grant can call in question the prior 
grant of the same land to the entry taker. These are 
questions not necessarily in this case, and we do not in- 



886 JACKSON: 



Martha J. Clark v. Hugh M. Clark et al. 



tend now to determine them. 1 Mur., 401 ; 1 Hawk., 
140; 2 do., 231; 3 do., 319; 1 Dev., 300; 2 Mnr. 
376; 4 Dev., 417, 596; 2 Dev. and Batt. Law R., 
246 ; Jackson v. Lawton^ 10 Johns. B., 23 ; 4 Hum., 
203; 1 Sneed, 134; 2 Sneed, 674. 

And it is alike unnecessary for us to put a con- 
struction upon the second section of the act of 1853, 
ch. 24 — since it is palpable it does not help the defend- 
ant in the present controversy. 

The decree of the Chancellor will be reversed, and 
the cause remanded for an answer. 



o 



Martha J. Clark v. Hugh M. Clark et ah 

1. "Will. Construction. Estate tail. Rule as to realty and personalty. 
As a general rule, 'whenever the words of a will, if applied to real 
property, would crea1;e an estate tail, they will, when applied to per- 
sonalty, vest the absolute property in the first taker. 

Same. Same. Same. The testator, by his will, bequeathed to his 
daughter, who was a feme sole, certain slaves and sums of money, 
with directions to his executor to invest the money in young negroes 
for her benefit. The bequest is subject to the following provision, 
namely : ** The said negroes with their increase shall be entailed on 
my said daughter Martha J., and her children, and not be taken for 
the debts of her husband." It is held, that the above rule has no ap- 
plication to this clause. That by the use of the word entailed it was 
not the intention of the testator to create an entail in the technical 
sense of that term. And the daughter took the negroes and money 
to her sole and separate use for life, free from the marital right of any 
future husband, with remainder to her children. 



FROM HATWOOD. 



A decree was pronounced for the complainant at the 



APRIL TERM, 1859. 887 



Hartba J. Clark v. Hugh H. Clark et al. 



Febmary Term, 1859, by Chancellor Williams. The 
defendants appealed. 

L. M*. Campbell and M. & H. Brown, for the com- 
plainants. 

T. G. k W. M. Smith, for the defendants. 

McKiNNEY, J., delivered the opinion of the Court. 

The bill seeks to have the rights of the complainant 
declared, under the will of her deceased father, Jacob 
Wilson. The testator, by his will, bequeathed to the 
camplainant, who was then a feme sohy certain slaves 
and sums of money, with direction to his executor to 
invest the money in young negroes for her benefit. The 
bequest is subject to the following provision, namely : 
^^ The said negroes, with their increase, shall be entailed 
on my said daughter, Martha J., and her children, and 
not be taken for the debts of her husband." 

In 1848, sometime after testator's death, the com- 
plainant intermarried with John C. Clark, who died in 
1855, leaving two infant children, the issue of said mar- 
riage. 

It appears that sometime after the marriage, the ex- 
ecutor purchased two slaves, with the money of the 
complainant, and delivered them to her husband. And 
afterwards, the executor having in his hands $1800 of 
the money bequeathed to complainant, instead of invest- 
ing it in negroes himself, paid it over to the husband, 
to be by him invested pursuant to the direction of the 

will. In the receipts and acquittances executed by the 
22 



888 JACKSON 



Martha J. Clark v. Hugh M Clark et al. 



husband to the executor, for the slaves specifically be- 
queathed to complainant bj the will, and the two slaves 
purchased by the executor, and also for the money 
above mentioned, the former, either expressly or impliedly, 
acknowledges the property and money to ha^e been re- 
ceived by him, subject to the provision of the testator's 
will, and the rights of the complainant. 

The question now is, whether, under the before re- 
cited provision of the will, said slaves and money were 
the separate property of the wife, for life, with remain- 
der to her children, or vested in the hiisband upon 
his marriage with complainant. 

The Chancellor decreed for the complainant, and we 
think correctly. It is certainly true, as a general rule, 
that whenever the words of a will, if applied to real 
property, would create an estate tail, they will, when 
applied to personalty, vest the absolute property in the 
first taker. 7 Ycr., 519, 625; 9 Yer., 242. 

But this rule has no application to the present case. 
By the use of the word '' entailed," in the clause of 
the will under consideration, it is not to be .supposed 
that it was the intention of the testator to create an 
entailj in the technical sense of that term. The object 
and intention of the testator manifestly was, to make a 
settlement on his daughter, to her sole and separate use, 
for life, free from the marital right of any future hus- 
band, with remainder to her children, in the event of a 
future marriage and issue. This is, beyond all doubt, 
the proper construction of the will. And in this view, 
the slaves remaining in specie will be settled according- 
ly, and the executor of Clark will account for the value 
of such, if any, as may have been converted by his 



APRIL TERM, 1859. 889 

Joseph Croone v. N. "W. Bivens et al. 

testator during the marriage ; and, also, for the amount 
of money by him received, belonging to the complain- 
ant. The cause will be remanded for taking the account 
ordered by the Chancellor. 
Decree affirmed. 



Joseph Croonb t». N. W. Bivens et ah 

1. Partnership. Sale, by one partner, of his interest in the firm. 
Lien, Where a partner sells his interest in the partnership concern, 
either to his co-partners or strangers, he has no lien on the partner- 
ship property for the payment of partnership debts for which he is 
liable. He cannot pursue specifically, or have an account of the 
effects of tbo late firm of which he was a partner, to the end that they 
may be subject to the satisfaction of claims existing against the firm. 

2. Same. Same. Same. Cantract to pay the debts of the firm. The 
fact that when such partner retired, his co-partners stipulated to pay 
the debts of the concern, and indemnify him, can make no difference, 
he having trusted to the personal covenants of his assignees ; unless 
he retains an interest in, or lien upon, the effects transferred, or stipu- 
lates that they shall be applied in payment of the partnership debts. 

3 Ghakcert JtTRiSDiCTiON. When surety entitled to relief. A surety 
has a right to bring his principal and the creditor into a Court of 
Chancery, to compel the payment of the debt for which he is bound. 

4. Same. Same. Partnership. (Question reserved. If one partner, 
who is bound for the firm debts, sells his interest in the firm to his co- 
partners, who agree to pay the debts and release him, can he be re- 
garded in the light of a surety for them, and come into a Court of 
Chancery to compel payment of the debts ? 

5. Sams. Fraudulent conveyances, may be aitacked without judgment. 
Codcy J 4288. Under section 4288 of the Code, a creditor may, with- 
out first having obtained a judgment at law, come into Chancery to 



5J40 JACKSON : 



Joseph Croone t?. N. W. Bivens et al. 



set aside fraudulent conveyances of property, or other devices resorted 
to for the purpose of hindering and delaying creditors, and subject 
the property, by sale, or otherwise, to the satisfaction of his debt. 



FROM MADISON. 



The bill was dismissed on demurrer by Chancellor 
Williams, at the February Term, 1859. The complain- 
ant appealed. 

M. & H. Brown, for the complainant. 

M. Bullock, Tomlin, and Stephens, for the defend- 
ants. 

Wright, J., delivered the opinion of the Court. 

The Chancellor dismissed the bill, and amended bill, 
upon demurrer, and in this we think he acted prop- 
erly. 

The case is governed by Smith v. Edwards et al,j 7 
Hum., 106. It is there held, that where a partner sells 
his interest in the partnership concern, either to his co- 
partners or strangers, he has no lien on the partner- 
ship property for the payment of partnership debts for 
which he is liable, any more than those against the pri- 
vate property, or effects of his former partners. He cannot 
pursue specifically, or have an account of the effects of 
the late firm of which he was a partner, to the end, 
that they might be subject to the satisfaction of claims 
existing against the firm. And the fact, that when he 
retired, his co-partners stipulated to pay the debts of 



APRIL TERM, 1859. 841 

Joseph Croone v, %N. W. Bivens ei al. 

the concern, and indemnify him, can make no difference, 
he haying trusted to the personal covenants of his as- 
signees. 

Here, the case made is, that complainants, Nathaniel 
W. Bivens and William H. Stone, were, at first, part- 
ners imder the firm name of N. W. Bivens & Co., after 
which thej took in one Emmerson, and the business pro- 
gressed under the firm name of Bivens, Croone & Co. 
After this, complainant and Bivens purchased out the 
interest of Stone and Emmerson, and the concern was 
carried on under the partnership style of Croone & 
Bivens, until the 8th of January, 1857, when complain- 
ant transferred all his interest in said firms, to said 
Bivens and one Bryan, and placed the assets, of every 
kind, in their possession, in consideration of which, they, 
in writing, stipulated to pay all the outstanding debts 
against said firms, and to release complainant therefrom. 

He retains no interest in, or lien upon, the effects 
60 transferred ; nor is there any stipulation that they 
shall be applied in payment of the partnership debts. 

Bivens & Bryan have failed to pay said debts, or to 
have complainant released, and he has been sued and 
forced to pay a part of them, and is liable to pay the 
residue ; and the said Bivens and Bryan are insolvent, 
and are applying the assets so transferred to their own 
private use. 

The object of the bill is to obtain an account of 
these assets, specifically, to have the firm debts paid, 
and complainant released. 

But, as we have seen, upon the authority of Smith v. 
Udwards et al,, and the cases there cited; the bill can- 



342 JACKSON : 



Joseph Croone v. N. W. Bivens et aL 



ot be maintained, and complainant must look to the 
personal covenants of Bivens & Bryan. 

Neither is there any other aspect in which the case 
can be maintained. It is a rule, to be sure, that a 
surety has a right to bring his principal and the credi- 
tor into a Court of Chancery, to compel the payment 
of the debt. But if we were to concede that complain- 
ant occupies — towards the creditors of these firms, and 
the defendants — the relation of a surety, yet the bill 
makes no case under this head of equity. The creditors 
are not parties, and the case is, in other respects, per- 
haps, defective. 5 Hum., 66. 

It is true, that complainant has been compelled to 
pay a part of these debts, and is, therefore, a creditor, 
to that extent, of Bivens & Bryan; and that now, un- 
der section 4288 of the Code, he may, without first 
having obtained a judgment at law, come into Chancery 
to set aside fraudulent conveyances of property, or other 
devices resorted to for the purpose of hindering and de- 
laying creditors, and subject the property, by sale, or 
otherwise, to the satisfaction of the debt. But the bill 
also fails to make a case under this section of the 
Code. It alleges no fraudulent conveyance, or other de- 
vice to hinder and delay creditors, and no relief is claimed 
upon that ground. 

Decree affirmed. 



APRIL TERM, 1859. 848 



Lownes, Orgill & Co. v. Augustus Hunter. 



LowNEs, Orgill & Co. v. Augustus Hunter. 



1. Stay OF Execution. Justice's docket. -4c<o/ 1886. The fact that 
the name of the stajor is not written in the most appropriate place oa 
the justice's docket, or that the docket is not made out with all the 
formality prescribed by the act of 1 885, will not vitiate the security, 
or discharge the stayor Irom his liability. 

2. Sams. Irregularities in the judgment. If the judgment upon which 
a party undertakes to stay execution remains in force, the stayor can- 
not go behind it in search of irregularities upon which to be discharged 
from his liability. If the party prejudiced by the supposed irregu- 
larity submits to it, it does not lie in the mouth of the surety for the 
stay of execution to complain. 

3. Cektiobari and Supissedxas. Judgment, Interest. CohU, Pro- 
cedendo. Code J J 8124, 8188. Prior to the adoption of the Code, the 
practice, upon dismissing a petition for a writ of supersedeas, was to 
discharge the supersedeas and award a procedendo to the justice to 
issue execution. But, by the proper construction of 2| 8124, 8188 of 
the Code, judgment is to be rendered in the higher Court for the 
amount of the justice's judgment with interest thereon, at the rate of 
twelve and one-half per cent, per annum against the principal and 
sureties in the certiorari bond, and also for costs of suit. 



FROM HAYWOOD. 



At the September Term, 1858, the execution issued 
by the justice was quashed, Read, J., presiding. The 
plaintiffs appealed. 

E. J. Read, for the plaintiffs, cited: Atkinson v. 
JRhea^ 7 Hum., 59; Hoberta v. CrosSy 1 Sneed, 233; Car- 
michael v. ffawkinSy 2 Sneed, 405 ; Hennegar v. Mee^ 4 
Sneed, 33; Newman v. MogerSy 9 Hum., 121; Winches- 



844 JACKSON: 



LowneSy Orgill & Co. v. Augustus Hunter. 



ter V. Beardiriy 10 Hum., 247; Johnson v. BillingBley^ 8 
Hum., 152. 

B. J. Lea, for the defendant, said: 

The defendant contends that he is not liable as 
stayor : 

1. Because the judgment rendered by the justice of 
the peace is void; void because the summons which was 
issued the 26th day of May, 1857, against "E. R. Mid- 
yett and J. L. Henry, late partners under the firm and 
name of Midyett & Henry,'' was only executed, as will 
appear by reference to the record, upon J. L. Henry, and 
returned before W. Saryster, who gave judgment against 
Midyett & Henry; the said Midyett never having been 
summoned to appear, nor did he appear; and, thereforei 
the judgment against Midyett & Henry, was void, and 
the defendant. Hunter, is not, therefore, liable as stayor. 

Again: The judgment is void by reason of irregu- 
larity, as will be seen by the leaf of the docket here 
exhibited. There is no caption to the docket, nor is it 
in any way, shape, or form, a compliance with the 17th 
section of the act of 1835, ch. 17. (N. & C, 435.) In 
the case of Johnson v. Billing%ley^ 3 Hum., 151, this 
Court say, that a substantial compliance with the act of 
1835, is sufficient; but, as will be seen, the judgment is 
not only irregular, but the entry upon the docket is in 
no manner an approach to the form given in the act of 
1835. 

2. There is nothing on the docket to show that the 
defendant. Hunter, ever was stayor to said judgment; 
and it is contended that his name must be in the 



APRIL TERM, 1859. 345 



Lownes, Orgill & Co. v. Augustus Hunter. 



column where stayers are entered, or the word stayor 
opposite to his name, or, in other words, the docket 
must show that he is stayor. 

In view of these facts, we contend that there was 
no error in the ruling of the Court helow, in quash- 
ing the execution as to defendant. 



McKiNNEY, J., delivered the opinion of the Court. 

In quashing the execution, on the ground that Hun- 
ter was not legally bound as atayovj we think the Court 
erred. The case is within the principle of Oarmichael 
V. ffawkins, 2 Sneed, 405. It is fully proved, that Hun- 
ter voluntarily applied to the justice to become stayor 
of the execution in this particular case, and accordingly 
wrote his name on the justice's docket, with the ex- 
press intent of binding himself as surety for the stay of 
execution, and was accepted by the justice as such. The 
fact that the name was not written in the most appro- 
priate place on the docket; or that the justice's docket 
was not made out with all the formality prescribed by 
the act of 1835, will not be allowed to vitiate the se- 
curity, or discharge the stayor from the liability, on the 
ground of the supposed irregularity in the judgment 
upon which he assumed to stay execution. Admitting it 
to be true, that the warrant was served on only one 
of the two joint defendants named therein and that 
the judgment was rendered jointly against both; this is 
a matter of which the party not served with process 
might complain; or, he might waive service of the war- 



846 JACKSON : 



L. Mayer &, Co. et al. v, J. L. Pulliam et al 



rant, and acquiesce in the judgment, as he seems to 
have done. But this is a matter with which the stayor 
has no concern. The judgment upon which he under- 
took to stay execution remains in fall force, and he 
cannot go hehind it in search of irregularities upon 
which to seek to be discharged from his liability. If 
the party prejudiced by the supposed irregularity, submits 
to it, it does not lie in the mouth of the surety for 
the stay of execution to complain. 

In this view of the case, the judgment must be re- 
versed. Prior to the adoption of the Code, the practice 
in such cases was, to discharge the fupersedeas^ and 
direct a procedendo to the justice to issue execution. 
But, by the proper construction of sections 8124 and 
8138 of the Code, judgment is to be rendered here for 
the amount of the justice's judgment, with interest 
thereon, at the rate of twelve and one- half per cent, 
per annum, against the principal and sureties in the 
certiorari bond; and also for the costs of suit. Judg- 
ment will be rendered accordingly. / 



L. Mayer & Co. et ah v. J. L. Pulliam et al. 



1. Desd of trust. Not void if creditors are required to present their 
claims within a specified time. A deed of trust was executed on the 
12th of May, 1857, providing for the payment of the **home credi- 
tors," by name, of the bargainors, and then directed that the remain- 
der of the fund in the hands of the trustee be divided pro rata among 
their New York and Philadelphia creditors, to whom they owed 
$21,000 J but said creditors were not otherwise referred to than by this 



APRIL TERM, 1859. 847 

L. Mayer & Co. et al. v. J. L. PuUiam et aL 

general description. The benefit of this provision vfHS confined to 
such of those creditors as would present their claims to the trustee on 
or before the 25 th day of December, 1858, and they were to be noti- 
fied by him. Held, that this was a just and prudent provision, and 
did not render the deed void. 

2. Same. Assignment of choses in action. Probate. Registration, An 
assignment of ehosea %n action is not embraced by the registry acts, 
and such assignment is as good without as with registration. If made 
to a third person, as trustee, for the benefit of creditors, it is good 
Against subsequent attaching creditors without probate and registra- 
tion. 



FROM FATETTE. 



Decree pronounced by Chancellor Williams, at the 
November Term, 1858. The defendant appealed. 

J. W. & J. A. Harris and Calvin Jonbs, for the 
complainants. 

Thomas Rivers and J. L. Pulliam^ for the defend- 
ants. 

Garuthers, J., delivered the opinion of the Court. 

Thomas & Greenwaj, merchants in Somerville, being 
largely indebted, even to insolvency, on the 12th of 
May, 1857, made an assignment for the benefit of their 
creditors, of cash notes on Washer &; Rose, for $12,000, 
and all their other notes, accounts, officer's receipts and 
judgments, to Joel L. PuUiam, as trustee, to collect and 
pay out. The deed provided for the payment of their 
"home creditors," and endorsers by name, and the bal- 
ance to be divided pro rata among their New York and 
Philadelphia creditors, to whom they owed 9^1,000, but 



848 JACKSON 



L. Mayer & Co. et al, v. J. L. Pulliam ei at* 



were not otherwise specified than by this general de- 
scription. But the benefit of this last provision was con- 
fined to such as might present their claims to the trus- 
tee on or before the 25th of December, 1858, and they 
were to be all notified by the trustee. The trustee was 
put into possession of the notes, &c., thus assigned, on 
the 15th of May — three days after the assignment. 

This deed of trust, as it is called, was regularly 
proved by the subscribing witnesses on the day of its 
date, as to Thomas, and at the same time acknowledged 
by Greenway ; but the clerk failed to state, in his cer- 
tificate, that he was personally acquainted with him. 
It was on the same day filed and noted for registra- 
tion. 

On the 28th of October, 1857, this bill was filed in 
the Chancery Court at Somerville, by a large number of 
the Philadelphia creditors, who had obtained judgments, 
and had executions returned, "no property found," on 
their respective claims, amounting to a large sum, against 
Pulliam, the trustee, Thomas & Greenway, and all the 
beneficiaries in the trust deed, to reach the efiects in 
the hands of the trustee, and make them liable to their 
debts. They claim the interest of Greenway, at all 
events, if they cannot reach the whole, on account of 
the defect in the certificate of acknowledgment, as to 
him. They impute no fraud whatever, but contend that 
the deed is void on account of the provision excluding 
such eastern creditors as do not file their claims in the 
specified time. 

The Chancellor overruled the demurrer to the bill, 
and after answers and proof, decreed that the assign- 
ment was good as . to Thomas, but not as to Greenway, 



APRIL TERM, 1859. 849 



L. Mayer & Co. et al, v, J. L. Fulliam et at. 



and subjected his one half of the property in the 
hands of the trustee, to the payment of the debts of 
complainants. From this decree the defendants appealed; 

His Honor erred in his final decree, as well as upon 
the demurrer. 

The bill is based upon but two grounds. 1st: That 
the deed is void on account of the provision in relation 
to the New York and Philadelphia creditors ; and 2d : 
That the half interest of Greenway does not pass under 
the deed, because of the defect in his acknowledgment 
before stated. If the complainants bd wrong in both 
their positions, theo, there is no equity in their bill, as 
they make no other objection to the assignment, and 
the demurrer should have been allowed, and the bill dis- 
missed. 

1. We are aware of no decision of this, or any 
other Court, that T7ill sustain the first position. It was 
a just and prudent provision. Twenty months were 
given to them to present their claims. It was proper 
to prescribe some time for the distribution of the fund 
in justice to those that might be vigilant ; otherwise, as 
there was not enough to pay all, and the distribution 
among them was to be equal, according to the amount 
of their claims, the delay might have been unreasonable, 
on account of the supineness of a few, and the trustee 
would never have been able to act with safety to him- 
self and justice to them, in the discharge of his trust. 
They were not prohibited from suing under a penalty 
of forfeiture^ nor were they required to remit part of 
their debts in order to get the balance. This provision, 
then, does not invalidate the deed upon any established 
principle, or sound reason. 



350 JACKSON : 



L. Mayer & Co. et al. v. J. L. PuUiam et al. 



2. Waiving tbe question as to the power of one 
member of the firm to make an assignment of the joint 
eifects for the payment of demands against the firm, 
after the dissolution, and also the question as to the 
effect of the insufficiency of the acknowledgment, if it 
were an instrument required to be registered, the case 
is still without difficulty on this point. We have re- 
cently decided in the case of Allen v. Bain and 
others, to be reported, that an assignment of choses 
in action is not embraced by our registry acts, and it 
is as good without, as with registration. Therefore, this 
deed was as effectual to pass and vest rights as if it 
had been registered upon a valid probate, there being 
no other objection to it. We need not now re-open 
that question, or enter into an argument to fortify our 
conclusion. It was decided upon full consideration, and 
must stand as the law. 

The question upon the necessity of notice to Thomas 
& Greenway*s debtors, of the assignment, in order to 
make the right of the assignee complete and perfect, 
though presented in the argument, does not arise. The 
bill does not attack the conveyance upon that ground, 
nor does it make the debtors, but only the trustee and 
beneficiaries in the deed, defendants. The attachment 
is only asked and issued against the defendants, and 
not the debtors in the claims assigned. Therefore, we 
are relieved from the consideration of that question, also. 

The result is, that the bill is destitute of equity, 
and should have been dismissed upon the demurrer. 

Let the decree be reversed, and the bill dismissed 
with costs. 



APRIL TERM, 1859. 861 



0. D. Yenable & Co. v. Levick, Brother & Go. 



C. D. Vbnablb & Co. V. Lbvick, Brother & Co. 

1. Partkbhship. Agency of each partner. Each partner is the agent 
of the partnership, and, therefore, the act of each in transactions 
properly relating to the partnership business, is regarded as the act of 
all, and binds all. But it is only in the capacity of an authorized 
agent of his co-partners, that he has power to bind them. Hence, in 
order to bind the firm the act must, ordinarily, be done in the name of 
the firm, otherwise, it will only bind the Individual partner as his own 
private act. 

2. Same. Same, Sale of goods to one partner presumed to be for the 
Jtrm. A sale of goods to one partner within the scope and course of 

the partnership business, is in judgment of law, a sale to the 
partnership, and the seller of the goods will not be affected by any 
fraudulent intention of the purchasing partner in buying them, or by 
his subsequent misapplication of them, if the seller be clear of the 
imputation of collusion. 

3. Sams. Same, Same. Negotiable seeuHties, The same principle 
applies to negotiable securities drawn, endorsed, accepted or negotiated 
by one partnerwithin the scope and course of dealing of the partner- 
ship in the absence of fraud on the part of the person receiving such 
sectirities. 

4. Samk. Same, Same, . Same. When the firm not bound. Fraud, 
Constructive knowledge. But if goods be sold to one partner on his 
private account, and for his individual benefit, or, if partnership se- 
curity be taken from him for a debt which the creditor knew at the 
time was the private or individual debt of the particular partner, 
without the previous knowledge or consent of the other partners, it 
would be a fraudulent transaction as to them, and clearly void. So, 
if from the subject matter of the contract, or the course of dealing, or 
the circumstances of the transaction, the creditor was chargeable with 
constructive knowledge of the fraudulent purpose, or intended mis- 
application on the part of the particular partner, the partnership can- 
not be made liable. 

5. Same. When a fraud for a person to take a partnership engage- 
ment without the autho7ntg of the firm. If the public have the usual 
means of knowledge given them in regard to the existence and busi- 
ness of a partnership, and no acts have been done or suffered by the 
partnership to mislead or deceive, every one is presumed to know the 
nature and extent of the partnership with whose members he deals; 
and where a person takes a partnership engagement without the 
knowledge or authority of the firm, for a matter that has no reference 



35S JACKSON : 



C. D. Venable & Co. r. Levick, Brother & Co. 



to the business of the firm, and is not within the scope of its authorit j, 
or its regular course of dealing, he is, in judgment of law, guilty of a 
fraud, and cannot enforce such engagement. 



FROM HE2IRY. 



Verdict and judgment for the plaintiffs, at the Sep- 
tember Term, 1858, Fitzgerald, J., presiding. The de- 
fendants appealed. 

McAmpbell and Dunlap, for the plaintiffs in error. 

B. F. Lamb, for the defendants in error. 

McKiNNBY, J., delivered the opinion of the Court. 

This was an action of assumpsit brought by Levick, 
Brother & Co., on a bill of exchange drawn in their 
favor by B. H. Badwell, for $803.15, on the firm of 
C. D. Venable & Co., and purporting to have been ac- 
cepted by said firm. 

The defendants pleaded : First, non-assumpsit ; and, 
secondly, a special plea, on oath, denying the accept- 
ance of said bill. Judgment was for the plaintiffs. 

From the bill of exceptions, it appears that C. D. 
Venable & Co., of which firm B. H.- Badwell, the 
drawer of said bill, was a member — carried on the mer- 
cantile business in Henry county, Tennessee. Badwell 
resided in Angelo in the State of Kentucky, where he 
carried on a separate, individual mercantile business. 

On the 19th of April, 1855, said Badwell was in 
the city of Philadelphia, and called at the house of 



APRIL TERM, 1859. S63 



G. D. Yenable A Go. «. Levick, Brother & Go. 



Lericky Brother & Co., merchants of that city, and rep- 
resented to them that he was a member of the firm of 
C. D. Yenable & Co., and was baying goods for them. 
The plaintiffs, thereupon, sold him a bill of goods, 
amounting to $803.15. The goods were purchased by 
Badwell, in his individual name, and were so entered 
on the plaintiff's books ; and were shipped to him at 
Angelo, Kentucky ; the bill of lading was likewise made 
out in his name. Badwell stated to the clerk of plain- 
tiffs, ^'that he would prefer to give his own obligation 
for the bill of goods, but that he was a member of the 
firm of C. D. Yenable k Co., and as such, was author- 
ized to use the firm name if necessary.*' But objec- 
tion being made to this, Badwell drew the bill of ex- 
change before mentioned, and immediately wrote an ac« 
ceptance thereof, in the firm name of Yenable & Co. 

The charge of the Court assumes, that, as Badwell 
was a member of the firm of Yenable & Co., he had 
authority, as such, to bind the firm for the bill of goods 
purchased from the plaintiffs, although the purchase was 
not in the name, or for the use of said firm, but in 
his own name, and for his individual benefit ; unless it 
were shown that the plaintiffs had knowledge of the 
fraudulent purpose of Badwell. 

This is a mistaken view of the law of the case. It 
is true, that each partner is the agent of the partner- 
ship, and, therafore, the act of each, in transactions 
properly relating to the partnership business, is regarded 
as the act of all, and binds all. Each one may enter 
into any contract, on behalf of the firm, in the ordi- 
nary business thereof, which, according to the common 

coarse and usages of such partnerships, is incident or 
28 



354 JACKSON : 



C. D. Yenable <Ss Go. v, Levick, Brother & Go. 



appropriate to the business. But it is only in the ca- 
pacity of an authorized agent of his co-partners, that 
he has power to bind them. Hence, in order to bind 
the firm, the act must ordinarily be done in the name 
of the firm; otherwise, it will only bind the individual 
partner as his own private act. Story on Part., sec. 
102; 3 Kent's Com., 41, 45; 3 Hum., 209; 1 Hum., 
28, 29. 

It is certainly correct, as a general proposition, that 
a sale of goods to one partner, within the scope and 
course of the partnership business, is, in judgment of 
law, a sale to the partnership, and the seller of the 
goods will not be affected by any fraudulent intention 
of the purchasing partner in buying them, or by his 
^bsequent misapplication of them, if the seller be clear 
of the imputation of collusion. 3 Kent's Com., 44. Col- 
yer on Part., sec. 392. 

And the same principle applies to negotiable securi- 
ties drawn, endorsed, accepted, or negotiated by one 
partner, within the scope and course of dealing of the 
partnership, in the absence of fraud on the part of the 
person receiving such securities. But, if goods be sold 
to one partner on his private account, and for his indi- 
vidual benefit; or, if partnership security be taken from 
him for a debt which the creditor knew at the time was 
the private or individual debt of the particular partner, 
without the previous knowledge or consent of the other 
partners, it would be a fraudulent transaction as to them, 
and clearly void. So, if from the subject matter of the 
contract, or the course of dealing, or the circumstanced 
of the transaction, the creditor ' was chargeable with con- 
structive knowledge of the fraudulent purpose, or in- 



APRIL TERM, 1859. 855 

C. D. Yenable & Co. v. Levick, Brother & Co. 

tended misapplication on the part of the particular part- 
ner, the partnership cannot be made liable. 3 Kent's 
Com., 42. If the public have the usual means of knowl- 
edge given them in regard to the existence and business 
of a partnership, and no acts have been done or suf- 
fered by the partnership to mislead or deceive, every 
one is presumed to know the nature and extent of the 
partnership with whose men^bers he deals; and when a 
person takes a partnership engagement, without the 
knowledge or authority of the firm, for a matter that 
has no reference to the business of the firm, and is 
not within the scope of its authority, or its regular 
course of dealing, he is, in judgment of law, guilty of 
a fraud. 3 Kent, 43. 

These principles are decisive of the case before us. 
The purchase of the goods and the partnership security 
given for their payment, did not purport to be for the 
partnership, but for Bad well, as a private individual. 
And of this fact, from the very nature and circumstan- 
ces of the transaction, the plaintiffs were chargeable 
with knowledge. It was the folly and the wrong of 
the plaintiffs to accept a partnership security for a debt, 
not created in the name of the firm, or for its benefit, 
on the faith of the statement by the particular part- 
ner, which, prima facie^ was untrue, as they were bound 
to know. 

The judgment will be reversed. 



356 JACKSON : 



The State v. W. B. Green. 



The Statb v. W. B. Green. 



1. Criminal Law. Coats. Taxed to the prosecutor. Certiorari and 
supersedeas. Justices of the peace. The power given to magiBtrates 
to tax the prosecutor, in criminal cases, with the costs, when the 
prosecution is frivolous or malicious, is discretionary ; but it is a legal 
and not an arbitrary discretion, and is subject to revision by the 
Circuit Court by virtue of the constitutional writ of certiorari. 

2. Samk. Same. Same. In what eases the prosecutor should be taxed 
•utUh the costs. To authorize a taxation of the costs in a criminal pro- 
ceeding to the prosecutor, the proof should be clear and conclusive 
that the prosecution was frivolous or malicious, and known to the 
prosecutor to be without foundation. It may, and often does hap- 
pen, that sufficient apparent cause exists, wben, upon investigation, it 
turns out to be otherwise. 

3. Same. Same. Same. Judgment. Certainty of. If a warrant is 
taken out, upon the oath of the prosecutor, for a criminal offence, and 
upon the trial judgment is rendered by the justice, on the warrant, 
discharging the defendant, and taxing the prosecutor with the costs, 
without stating in the judgment the name of the prosecutor, it is not 
void, and should not be quashed for uncertainty. To hold that such 
a judgment was void for uncertainty, would be too technical for jus- 
tices proceedings. 

4. Same. Same. Same. Evidence. Question reserved. If the evi- 
dence is not taken down by the committing magistrate, would his 
judgment taxing the prosecutor with Uie costs be subject to the revi- 
sory power of the Circuit Court, or does it apply, alone, to cases where 
the proof is reduced to writing by the justice, as required by law? 



FROM PBRRT. 



At the June Term, 1858, Walker, J., presiding, the 
judgment of the justices was held to he void, and the 
execution quashed. The State appealed. 



APJRIL TERM, 1859. 867 



The State v. W. B. Green. 



Garuthers, J., delivered the opinion of the Court. 

This is an appeal in error by the State, from a 
judgment of the Circuit Court quashing an execution 
against Green for the costs of a prosecution instituted by 
him before a justice of the peace against Thomas W. 
Palmer, for the crime of malicious shooting, from which 
the defendant was discharged by the magistrates who sat 
upon the case, .and the prosecutor taxed with the costs, 
because they found that the prosecution was malicious. 

Upon the petition of Green, and the fiat of the Judge, 
the case was brought into the Circuit Court by writs of 
certiorari and supersedeas. The Court refused to enter- 
tain the case for an investigation of the grounds of the 
magistrate's judgment, holding that no appeal, or eerti- 
orariy will lie to remove the judgment of a justice taxing 
a prosecutor with costs, into the Circuit Court; but held 
that the judgment against the petitioner was void, and 
therefore quashed the execution. 

The warrant recites that it was issued upon the oath, 
and at the instance of W. B. Green ; and upon the back 
of this is the judgment, which is, that the defendant. 
Palmer, was not guilty, and then proceeds, ^' and that 
the prosecution was a malicious one, and we do order 
that the prisoner be, and he is hereby released from 
the charge, and that the prosecutor pay all costs of suit 
for which execution may issue." One of the three jus- 
tices who sat upon the case dissented, in writing, on both 
points, believing that the defendant was guilty, and should 
be bound over to Court to answer the charge. 

We think his Honor erred in quashing the execution 
upon the ground that the judgment was void for uncer- 



868 JACKSON : 



The State v. W. B. Green. 



taint J. It is true that the jadgment does not show on 
its face that Green was prosecutor, nor is his name in- 
serted in it; but the warrant shows that, and cures the 
defect, as it is entered upon the same paper. There is 
no uncertainty, when reference is had to the whole paper, 
and the rule applied is too technical for proceedings 
before a magistrate. It is not like a case of a judg- 
ment by motion, where everything necessary to gire 
jurisdiction and establish liability must appear in the 
judgment, for, in those cases, there is nothing with which 
to connect and help out the judgment. 

But we think the Circuit Court had jurisdiction to 
revise the judgment, by certiorari^ upon the facts as re- 
corded by the justices in the discharge of their duty as 
a committing tribunal. This was offered to sustain the 
allegations of the petition that the prosecution was not 
frivolous, or malicious, and rejected by the Court upon 
the ground that a judgment for costs against the prose- 
cutor was final and conclusive. If this were so, the 
cause of public justice would often be defeated by de- 
terring citizens from prosecuting offenders. There is, in 
many cases, too much reluctance, on the part of citizens, 
to undertake the performance of this disagreeable and, 
often, thankless duty, for other reasons; but if, in addi- 
tion to these, they are put in danger of having the 
costs thrown upon them by an irreversable decree of the 
committing Court, the guilty will too often go unpunished, 
and even unarraigned. The prosecution should be very 
clearly without foundation, and that known to the prose- 
cutor, so as to show that his motives were malicious, 
and not for promotion of public justice, in instituting 
the prosecution, in order to subject him to the costs. 



APRIL TERM, 1859. 369 



The SUte v. W. B. Green. 



It may, and does often happen, that sufficient apparent 
cause exists, when, upon investigation, it turns out to be 
entirely groundless. This law was intended only for 
strong and clear cases of malicious prosecution, unmixed 
with the proper motive, which is to bring offenders to 
justice for the public good. In such a case the law is 
right, and ought to be enforced, as the process and 
forms of the law ought not to be used solely to gratify 
personal animosity, nor recklessly, where there is no 
grounds for the charge. It is of very doubtful expe- 
diency to extend this power to a committing Court, where 
the cases must of necessity, as a general thing, be im- 
perfectly examined. But as it has been done, it is 
almost indispensable that their judgments should be sub- 
ject to revision. Such a power the Circuit Court, as a 
Court of general jurisdiction, has over all inferior juris- 
dictions, even courts martial, by virtue of the constitu- 
tional writ, of certiorari^ analogous to the King's Bench 
in England. Duggan v. McKinney, 7 Yer., 21. 

The practice of re-examining the facts in the Circuit 
Court would, certainly, be inconvenient in cases where the 
evidence had not been written down by the justices, as 
they are required to do by law. Where that is not 
done, we will not say how the law would be, as that is 
not the question now before us. But in this case the 
petitioner proposed to show by the proof, as written 
down, that the judgment against him for the costs 
was erroneous. We think the Judge should have exam- 
ined it, and determined the question of the liability of 
the prosecutor under the law. The power given to the 
magistrate is discretionary, but it is a legal, and not an 
arbitrary discretion. It may be very much abused, and 



360 JACKSON: 



William Gray ci al. v. James Davis et al. 



should be subject to revision in the Circuit Court. The 
ground upon which it may be exercised, is fixed by the 
law — that is, where the prosecution is frivolous or ma- 
licious, not otherwise. By certiorari the case may be 
brought before the Circuit Court, to determine whether 
the judgment of the committing Court was correct on 
that question ; and if not, to reverse it. 

We reverse the judgment dismissing or refusing the 
certiorari as to that point, as well as the judgment 
quashing the execution, and remand the case, with direc- 
tions to examine the evidence as • recorded, and decide 
the question upon its merits. If the Court should find 
that the facts authorize the judgment against the prose- 
cutor for the costs, it will be proper to see that no 
illegal costs are charged in the execution. 



William Gray et al. v. James Davis et al. 



1. Laitd Law. Occupant claim, ^c/ q^ 1848, cA. 8, J 4. Adminisira- 
tors and executors. The act of 1848, ch. 8, { 4, provides that in all 
cases where an occupant claimant south and west of the Congressional 
Beservation Line, "may have heretofore died, or may hereafter die, 
without having perfected his title to his occupant claim, it shall be the 
duty of the administrator, or executor, by the use of the first money 
which shall come to his hands, to perfect the title to the occupant 
claim of his testator or intestate, in the name and for the use of the 
heirs at law^, of such decedent claimant." This act is retrospective^ 
and applies to all cases occurring before its passage, when the admin- 
istration has not been settled up, and the administrator or executor 
discharged of the trust. 



APRIL TERM, 1859. 861 



William Gray ei al. v. James Davis et al. 



2. Sahs. Same, Same. Same. Application of the prineipU, Trust 
and trustee. The testator died in 1834. He was the owner, at his 
death, of an occupant claim south and west of the Congressional Res- 
ervatioD Line, the title to which had not been perfected. His widow 
was duly qualified as his executrix. She received money and assets of 
the estate, but had made no settlement of her administration at the 
time of the filing of the bill In this case. In 1846 the widow caused 
said lands to be entered, and she procured a grant therefor, in her own 
name; and afterwards, by her will, devised the land to two of her 
children. Held, that not having closed her administration, and been 
discharged of the trust prior to the passage of the act of 1848, she 
was bound to carry out its provisions, and must be held to have taken 
the legal title as trustee for the heirs, and her devisees can stand in no 
better condition. 



FROM OBION. 



Decree for the complainants, at the July Term, 1858, 
Williams, Chancellor, presiding. The defendants ap- 
pealed. 

Cochran & Enloe, for the complainants. 
Davis, for the defendants. 

McKiNNEY J., delivered the opinion of the Court. 

Benjamin Hubbard died in 1834. He was the owner, 
at the time of his death, of an occupant rights to 160 
acres of land in Obion county. 

His widow was duly qualified as executrix of his 
will. She received money and assets of the estate, but 
up to the filing of this bill, in 1857, failed to setth 
her administration account, and discharge herself of the 
trust. It appears that said executrix, on the 7th of 
March, 1846, caused said lands, to which the testator 



362 JACKSON : 



William Gray et al, v. James Da-vis et al. 



had an occupant right, to be entered in her own name, 
and procured a grant in her own right, and afterwards, 
by her will, devised the same to two of her children — 
the defendants, Evelina and Catharine. 

This was a direct violation of the act of 1843, ch. 
8, sec. 4. By this act it is provided, that in all cases 
where an occupant claimant, south and west of the Con- 
gressional Reservation Line, " may have heretofore died, 
or may hereafter die, without having perfected his title 
to his occupant claim, it shall be the duty of the ad- 
ministrator or executor, by the use of the first money 
which shall come to his hands, to perfect the title to 
the occupant claim of his testator or intestate, in the 
name and for the use of the heirs at law of such dece- 
dent claimant," &c. 

This act, it will be observed, is retrospective; and, 
therefore, there is nothing in the argument, that the 
testator had no transmissible interest in the occupancy 
claim at the time of his death — the statute not having 
been passed until some eight years after the qualifica- 
tion of the executrix. If she had closed her adminis- 
tration, and been discharged of the trust, prior to the 
passage of the act, of course she would have been free 
from the duty imposed by the statute. But she failed 
to do so — the trust remained — and having funds of the 
estate in hands, it was her imperative duty to have per- 
fected the title, as provided by the act of 1843. The 
attempt to appropriate the land to her own use, was a 
gross breach of trust, and a fraud upon the rights of 
the heirs. She must, consequently, be held to have ta- 
ken the legal title as trustee for the heirs, and her 
devisees stand in no better condition. The decree di- 



APRIL TERM, 1859. 868 



R. T. Adams v. Mayor and Aldermen of Somerville. 



vesting them of the title to eight-tenths of the land, 
was, therefore, proper. The decree is also correct in 
declaring, that, under the fourth item of the will, the 
widow took only a life interest. 
Decree affirmed. 



B. T. Adams v. Mayor and Aldermen of Somerville. 

1. Constitutional Law. Art 2, J{ 28, 29. Taxation, An impor- 
tant and fundamental distinction is made by the Constitution, between 
property and privileges^ in regard to the power of taxation delegated 
to the Legislature. The rule laid down as to the former, is, that "all 
property shall be taxed according to its value;'* and " no one species 
of property from which a tax may be collected* shall bo taxed higher 
than any other species of property of equal value." But the rule as 
to privileges, is the discretion of the Legislature: the latter are to be 
taxed in such manner as may, from time to time, be directed by the 
Legislature. 

2. Same. Same. Same, Corporations, -^Ic^q/ 1854, cA. 17, J 6. A>- 
ffro traders. Hence, the act of 1804, ch. 17, { 6, incorporating the 
town of Somerville, and conferring power on the Mayor and Alder- 
men, by Ordinance, *' to license, tax, and regulate auctioneers, grocers, 
merchants, retailers, brokers, cofleo houses, confectioneries, retailers 
of liquors, hawkers, pedlern, negro traders, and tuvern keepers,'* is 
constitutional. And an ordinance pai^sed by the Mayor and Alder- 
men, by virtue of said charter, requiring, *' That all negro traders 
who shall expose negroes for sale within the corporate limits of the 
town of Somerville, he or they shall pay a yearly license tax of twenty 
dollars," is not in conflict with the Constitution, and may be enforced. 

FROM FAYETTE. 

This cause was heard, on an agreed case, at the Oc- 
tober Ternj, 1858, Humphreys, J., presiding. Judgment 
in favor of the corporation. Adams appealed. 



864 JACKSON: 



R. T. Adams v. Mayor and Aldermen of Somerville. 



J. D. GooDALL, for the plaintiff in error. 
L. P. Jones, for the defendant in error. 
McKiNNEY, J., delivered the opinion of the Court. 

This suit was commenced before a justice, to recover 
the sum of {40.00, the forfeiture imposed by the cor- 
poration, for a breach of one of its ordinances by the 
plaintiff in error. The case was removed, by appeal, to 
the Circuit Court, where, on an agreed case, judgment 
was rendered for the corporation. The case is this: 

By the act incorporating the town of Somerville, (see 
act of 1854, cb. 17, sec. 6,) express power is conferred 
on the Mayor and Aldermen, by ordinance, "to license, 
tax, and regulate auctioneers, grocers, merchants, retailers, 
brokers, coffee-houses, confectioneries, retailers of liquors, 
hawkers, pedlers, livory stable keepers, negro traders, and 
tavern keepers.'' 

In pursuance of this power, an ordinance was passed, 
which provides, among other things, "That all negro 
traders who shall expose negroes for sale within the 
corporate limits of the town of Somerville, he or they 
shall pay a yearly license tax of twenty dollars." 

The ordinance requires, that a license shall be pro- 
cured from the Recorder, "by paying the tax thereon, 
and his fee of one dollar and a half for issuing the 
same." And it is further provided, that if any person 
shall exercise the privilege, without first obtaining a 
license, "he shall forfeit and pay double the amount of 
the license, and all costs incident to the collection of the 



same." 



APRIL TERM, 1859. 365 

B. T. Adams o. Mayor and Aldermen of Somerville. 

It is admitted in the agreed case, that Adams, the 
defendant, was a ^^ negro trader/' and that he exposed 
negroes for sale, and sold one within the corporate 
limits of the town of Someryille, in October, 1856, with- 
out obtaining a license, as required by the ordinance. 

The argument for the plaintiff in error assumes, that, 
if it were competent to the Legislature, to confer such 
a power upon a municipal corporation, still, the ordi- 
nance is invalid, because the mode of exercising the 
power provided therein, is different from, and incompati- 
ble with, the principle and mode prescribed by the gen- 
eral law of the State, in regard to this particular 
^^ privilege." In other words, the argument is, that the 
corporation cannot adopt a different principle, or mode, 
of taxing "privileges" from that adopted in regard to 
State taxation. 

We think this argument is unsound. By the second 
article of the Constitution, sec. 28, the power is given 
to the Legislature to tax "privileges, in such manner as 
they may, from time to time, direct." And by the 29th 
section, the power is given to authorize counties and in- 
corporated towns, "to impose taxes for county and cor- 
poration purposes, respectively, in such xranner as shall 
be prescribed by law ; and all property shall be taxed 
according to its value, upon the principles established in 
regard to State taxation." 

It must be borne in mind, that, in regard to the 
power of taxation delegated to the Legislature, an im- 
portant and fundamental discrimination is made between 
property and privilegeSy by the Constitution. The rule 
laid down as to the former, is, that " all property shall 
be taxed according to its value," and, "no one species 



366 JACKSON : 



B. T. Adams v. Mayor and Aldermen of Somerville. 



of property from which a tax may be collected, Bhall 
be taxed higher than any other species of property of 
equal value." But the rule, as to privileges, is the 
discretion of the Legislature ; the latter are to be taxed 
in such manner as may, from time to time, be directed 
by the Legislature. 

It will be observed, too, that the 29th section, which 
authorizes a delegation of the power of taxation to in- 
corporated towns, for corporation purposes, is very broad 
in its terms; it does not mention ^'privileges" at all; 
property alone is embraced; and in reference to that, 
the only restriction is, that the principle established in 
regard to State taxation, shall be observed by corpora* 
tions. 

But, in respect to privileges^ the corporation is left 
to the exercise of a sound discretion in imposing a tax 
thereon, unless restricted by the Legislature, in the 
charter of incorporation, or by some general law of the 
State. 

In the charter before us, the power of the Mayor 
and Aldermen ''to license, tax, and regulate" negro 
traders, is general and unrestricted. It is no valid ob- 
jection, therefore, that the Board, in the exercise of 
this discretionary power, has proceeded upon a different 
principle, or in a different mode, from that adopted by 
the Legislature in respect to State taxation. Mayor and 
Aldermen of Columbia v. Beasli/j 1 Hum., 232, 240. 

The principle of taxation applicable to property, is 
altogether impracticable in regard to privileges. It is 
obviously necessary and proper, that the exercise of the 
power to impose a tax on privileges, should be left to 
a sound discretion; because no definite rule, based upon 



APRIL TEEM, 1859. 867 



M. Dement, Gaardian, &c., v. W. S. Scott. 



a supposed equality in value, cau be prescribed, as re- 
spects what arc denominated privileges ; and if such a 
rule were practicable, reasons founded in public policy 
might demand, that privileges of certain kinds should be 
taxed upon a very diflFerent principle from others. This 
is peculiarly proper in regard to town corporations. The 
power to the latter, to tax privileges, was not intended 
as a source of revenue merely. It was likewise designed 
as a means for imposing restraints upon the exercise of 
certain privileges, whose tendencies were of a nature to 
encourage vice or disorder, or were contrary to public 
policy. 

It follows, then, that the validity of the ordinance 
(not being in itself oppressive) must depend upon the 
grant of power in the particular charter of incorpora- 
tion. In the present instance, the express grant of 
power is ample; and the ordinance is consequently 
valid. 

The judgment will, therefore, be affirmed. 



M. Dbment, Guardian, &c., v. W. S. Scott. 



1. EviDCNCE. Hearsay. Adnitsnorui of guardian. The statemonts of 
& guardian relative to a contract for the hire of a slave, made by him 
as guardian, in a suit to which he is not a party, are not admissible. 
First, because it is mere hearsay evidence. If admissible, the guard- 
ian must be called on as a witness. Second, the evidence is inadmis- 
sible on the principle that the admissions by a guardian, though the 
plaintiff, or a party on record, is not evidence against the infant. 



36& JACKSON : 



M. Dement, Guardian, &c., v. W. S. Scott. 



2. Slayks. Contract of hire. Liability of the hirer. To work at dig- 
ging a race, which, in some cases, might require the hiasting of rock 
and standing in water, is not properly emhraced by a contract to work 
on or at the mill. The race, though necessary to the mill, is distinct 
from it, and might demand exposure to extra hazardous employment 

S. Same. Same, Same. Voluntary exposure by the slave. The hirer 
having power to control the slave, is bound to restrain him from wilful 
exposure, by the obligations which the law impose on him. And he 
is responsible for the consequences of any exposure of which he has 
knowledge and does not prevent, although it may be voluntary by the 
slave, and against his orders. 

4. Same. Same. Same. Same. Previous disease of the slave. Rescission 
of contract of hiring. If a hired slave is diseased at the time of the 
contract, and this fact is not communicated to the hirer, either from 
fraud or ignorance of its existence, the hirer has the right, upon com- 
ing to a knowledge of the fact, to abandon the contract, and return 
the slave ; but he is not justified in requiring the slave to perform a 
kind or amount of labor for which he has not the physical capacity, 
and which, of necessity, must destroy his life more speedily. 



FROM WEAKLEY. 



This cause was tried at the October Term, 1858, 
Fitzgerald, J., presiding. Verdict and judgment for 
the defendant. The plaintiff appealed. 

Rogers, Sombrs, and Caldwell, for the plaintiff. 

Edwards and Ethbridge, for the defendant. 

McKiNNEY, J., delivered the opinion of the Court. 

This was an action on the case, to recover damages 
for the loss of a slave, the property of the plaintiff, 
hired to the defendant for the year 1856, and who died 
during the year. Verdict and judgment were for the 
defendant. 



APRIL TERM, 1859. 369 



M. Dement, Guardian, &c., v. W. S. Scott. 



The declaration contains counts both in trover and 
case. The slave was hired out at public auction by 
one Valentine, who was then the regular guardian of 
the plaintiff, a minor, but who ceased to be guardian 
before the institution of this suit. 

The contract of hiring is admitted on all hands to 
have been special; but there is a disagreement in the 
testimony as to the extent of the restrictions imposed 
on the hirer. The auctioneer states that the terms pro- 
claimed were, that the slave was "not to work on rail- 
roads, mills, rivers^ boats, or public works." But there is 
testimony going to show, that while the bidding was 
progressing, the defendant stated that he desired to hire 
the slave, but the terms precluded him. Valentine then 
inquired of him what he wanted the negro to do; and 
the defendant replied that he was about to build a new 
mill, and he wanted the boy to work part of the time 
on the mill, part in getting timber, and part on the 
farm; and Valentine then told him to bid on. There 
is other testimony in conflict with this, and tending also 
to establish that the boy was not to work in mud or 
water. 

The ground of the action is, that the slave was put 
to digging a mill-race and foundation for the mill, in 
doing which he was exposed to standing in mud and 
water, whereby his sickness and death were caused. 

For the purpose of presenting the questions submitted 
for our determination, it is not necessary that we should 
do more than state this mere outline of the proof. 

The first error assigned is, the admission of the 

stitements of Valentine, the former guardian, made long 

after the hiring, and after the death of the slave, to 

24 



370 JACKSON : 



M. Dement, Guardian, &c., t>. "W. S. Scott. 



the effect that it was useless for the plaintiff to sue for 
the loss of the slave, that she could not recover, for 
he had hired the slave to defendant to work at the 
mill. 

In admitting this evidence, the Court erred. First, 
because it was mere hearsay evidence. If admissible, 
Valentine, who was not a party on record, must have 
been called as a witness. But the evidence was inad- 
missible, in the second place, on the principle, that the 
admission by a guardian, though the plaintiff, or a party 
on record, is not evidence against the infant. 2 Stark. 
Ev., (ed. of 1828,) p. 40, and cases cited in note o. 

The other errors relied on are in the charge of the 
Court. In expounding the contract, the Court stated to 
the jury, that "if the contract was, that he (defendant) 
might work the negro in building a mill, he had a 
right to put him at any work necessary and proper for 
the construction of the mill." We are unable to assent 
to the correctness of this proposition. To work at dig- 
ging a race, which, in some cases, might require the 
blasting of rock, and standing in water, is not properly 
embraced by a contract to work on or at the mill. 
The race, though "necessary" to the mill, is distinct 
from it, and might demand exposure to extra hazardous 
employment. 

Again, the Court further said to the jury, that "if 
the negro went into the mud and water of his own 
accord, against the orders of the defendant, and when 
it was not necessary for him to do so in order to per- 
form the labor at which he was put, this being volun- 
tary on the part of the slave — hfe being a reasonable 
creature — would not make the defendant liable for his loss." 



APRIL TERM, 1859. 871 



M. Dement, Guardian, &c., r. W. S. Scott. 



This would be correct, perhaps, if the slave thus 
exposed himself without the knowledge of the defendant. 
But if the defendant had knowledge thereof, the fact 
that the slave exposed himself voluntarily, without neces- 
sity, and against orders, would be no excuse for the 
defendant. The latter having power to control the slave, 
was bound to restrain him from wilful exposure by the 
obligations which the law imposed on him. 

The error seems to be in attributing to a slave that 
freedom of will and power of self-determination which 
belong, only, to a freeman. 

The Court likewise stated to the jury, in substance, 
that if the slave was diseased at the time of the hir- 
ing, and Scott was not informed of it, and worked the 
slave in such a way as he had hired him to work, and 
in a reasonable manner, and the slave became sick and 
died of his original disease, the defendant would not be 
liable. 

This position, we think, is not quite accurate. If the 
slave were in fact diseased at the time of the contract, 
and this fact was not communicated to the defendant, 
either from fraud, or ignorance of its existence, it would 
have clearly entitled the defendant, upon coming to a 
knowledge of the fact, to have abandoned his contract, 
and to have returned the slave ; but he would not have 
been justified in requiring the slave to perform a kind 
or amount of labor for which he had not the physical 
capacity, and which, of necessity, must destroy his life 
more speedily. 

Without noticing other matters in the case, the judg- 
ment must be reversed on the grounds before stated. 



872 JACKSON : 



Newman Haynes et al, v. W. Jones et €d. 



Newman Haynes et al. v. W. Jones at al. 



1. Statute OP Limitations. What will ar^^ett it Descent cast If a 
parent placo a son in possession of land under a verbal gift and the 
possession is held by the son adversel}' to the father and all other per- 
sons, the oeath of the father will not arrest the running of the stat- 
ute. By the descent cast the heirs are placed exactly in the shoes of 
their ancestor. And the statute having attached and commenced run- 
ning against him in his lifetime, it continues to run without intermis- 
sion against his heirs. Its operation can, in such case, be arrested, only, 
by a suit at law, or in equity, effectually prosecuted. 

2. Sams. Same, Same. Saving of the statute. The ancestor being free 
from disability when the adverse possession is taken and the running 
of the statute commenced, there is no saving or exception in the stat- 
ute in favor of his heirs ; and they, though infants or femes covert, 
are bound to sue just as much as their ancestor would have been had 
he lived, before the expiration of seven years from the adverse pos- 
session. 

3. Samk. Possessory right Ad of 1819. Advancement. If a child is 
placed in the possession of land, by the parent, under a parol gift as an 
advancement, and such child holds said land adversely to the parent 
and the other heirs for a period of seven years, he will be protected 
under the second section of the act of 1819, to th(5 extent of his enclo- 
sure, for which he must account at the estimated value put upon the 
land at the time of the advancement.* 



FROM GIBSON. 



At the June Term, 1858, Chancellor Williams pro- 
nounced a decree, from which the defendants appealed. 

Hill, for the complainants. 



* The parol gift of the land, as an advancement, is void. The possesso- 
ry right to the land is perfectted, only, by operation of the statute of 
limitations. Now, is the land to be valued at the time the possession is 
given, or at the time the title is perfected by the running of the statute ? 



APRIL TERM, 1859. 378 



I^ewman Haynes et aL v. W. Jones et al. 



T. J. & J. T. Carthbl, for the defendants, argued— 

The course of decision, both in England and in this 
country, has established the rule, beyond doubtj that 
when the statute of limitation has commenced running, 
it runs over all subsequent disabilities and intermediate 
acts and events, 2 Green!. Ev., § 439 ; Angel on Lim., 
ch. 36, and page 520. 

The question of joint tenancy has nothing to do with 
the case, because the parties had no joint interest at 
the time the adverse possession of J. W. Jones com- 
menced. That possession having commenced in the life- 
time of the father, his death did not arrest the operation 
of the statute, although some of the heirs upon whom 
the estate was cast may have been infantSy or femes 
covert, 

J. W. Jones having acquired a title to the land by op- 
eration of the statute of limitations, we insist that it re- 
lates back to, and he is only chargeable with the value 
of the land at the time he was placed in possession. 



McKiNNBY, J., delivered the opinion of the Court. 
The complainants are a portion of the heirs at law 



The former seems to be the ruling of the Court. Yet, such has not been 
the universally received opinion of the Bar, nor the uniform course of de- 
cision in the inferior Courts. The rule is different in Kentuckj'. There 
every advancement is to be charged at its value at the time when the gift 
becomes complete and irrevocable, in law or equity. And where a father 
advances a child by a verbal gift of land, which cannot be enforced and 
may be revoked, but is afterwards confirmed by a conveyance, the value of 
the land at the date of the conveyance is the value at which it is to be 
brought into hotchpotch. Barber v. Taylor's heirSf 9 Dana., 84; Hook v. 
Hooky 13 B. Monroe, 628. See, also, Stallintjs v. StallinffSy 1 Dev., ch. 
2^; Robinson v. Robinson^ 4 Hum., 392: Cawihon v. Coppedge, 1 Swan. 
487. 



374 JACKSON : 



Newman Hnynes et al. v. W. Jones et al. 



and distributees of the estate of John Jones, who died 
intestate in Gibson county, in 1853, and the defend- 
ants are the admimstrator and remaining distributees and 
heirs. 

In addition to an account of the administration, the 
complainants seek distribution and partition of the slaves 
and real estate. 

The case is brought here upon a single question, in re- 
lation to part of the real property. Some time previous to 
the year 1846, the intestate made a parol gift to the 
defendant, Joshua, his son, of two hundred acres of land, 
part of the tract on which the intestate resided. The 
only written evidence of the gift is a memorandum made 
in a book kept by the intestate, showing the advance- 
ments made to his several children, which is as follows: 
" Gave to my son, Joshua, 200 acres of land, to be 
taken oflF of the west side and north end of the ti'act 
I now live on, at $450.00.*' The land was not run oflf 
or set apart by metes and bounds, to the donee ; but 
about the first of the year 1847, and nearly seven years 
before the death of his father, he entered into possession 
of a tenament on the land intended for him, and has 
resided thereon ever since, and has made valuable im- 
provements on the same. Before the filing of this bill, 
he had been in possession for more than seven years, 
claiming it as his own, with the knowledge and appro- 
bation of his father during his life; and since the death 
of his father, he has, in like manner, claimed it against 
the other heirs, to which no objection has been made, 
except by the complainants — ^his brothers-in-law. The 
proof shows that some thirty acres or more were en- 
closed and adversely held by the defendant, Joshua, for 



APRIL TERM, 1859. 375 

Newman Haynes et al. v. W. Jones et al. 

a period of more than seven years before this suit. The 
Chancellor was of opinion that the defendant would only 
be protected in the possession, under the second section 
of the act of 1819, of so much of said land, if any, 
as he had in actual possession, by enclosure, for the full 
space of seven years, prior to the death of the intes- 
tate; and that on the death of intestate, and conse- 
quent descent of the title to his heirs at law^ the op- 
eration of the statute was arrested. 

In this view, his Honor erred. By the descent cast, 
the heirs were placed exactly in the shoes of their an- 
cestor. And the statute having attached and commenced 
running against him in his lifetime, it continued to run, 
without intermission, against his heirs. Its operation 
could only have been arrested by a suit at law, or in 
equity, effectually prosecuted. The ancestor being free 
from disability when the adverse possession was taken, 
and running of the statute commenced, there is no saving 
or exception in the statute in favor of his heirs ; and 
they, though infants or femes covert^ were bound to 
sue just as much as their ancestor would have been had 
he lived, before the expiration of seven years from the 
commencement of the adverse possessicm. 

The idea that the title descended to all the heirs 
jointly, and, therefore, the possession of the defendant, 
Joshua, was the possession of all, and, consequently, the 
statute ceased to operate from the descent of the title 
to the heirs, is altogether fallacious. The exclusive and 
adverse character of the defendant's possession, upon 
which the operation of the statute depended, was, in no 
respect, changed or affected by the descent of the title 
to the heirs. 



1 



376 JACKSON : 



Mary W. Bowers v. A. H. Dougluss. 



The result is, that the defendant, Joshua, has ac- 
<£uired a possessory right to so much of said tract of 
land as may have been held and occupied, by actual 
enclosures, for the period of seven years before the com- 
mencement of this suit; for which he must account at 
the estimated value put upon the land at the time of 
the advancement. 

The decree will be modified accordingly. 



Mary W. Bowers v. A. H. Douglass. 



Partnership. Contract with one partner. When illegal. Usuri/. If 
one partner borrows money for the benefit of the firm, and executes 
the firm note for the amount borrowed, but at the same time enters 
into a verbal contract with the lender to pay usurious interest for the 
use of the money, such independent parol agreement will not bar the 
right of recovery on said note. This contract, though illegal and 
void, is, in legal contemplation, separate and distinct from the con- 
tract evidenced by the note, and does not fall within the principle in 
the case of Huichi7i8 v. Turner, 



FROM SHELBY. 



At the November Term, 1858, there were verdict 
and judgment for the defendant, Carutiiers, J., presid- 
ing. The plaintiff appealed. 

Small & Foute, for the plaintiff, referred to Smith- 
wick <f Co, V. Anderson^ 2 Swan, 573; Bailey v. Cooper, 



APRIL TERM, 1859. 877 



Mary W. Bowers v. A. H. Douglass. 



5 Hum., 401-2; 2 Greenl. Ev., §§ 206-7; ffutchins v. 
Turner, 8 Hum., 415. 

Yerger & Farrington, for the defendant. 

McEiNNET, J., delivered the opinion of the Court. 

This was an action of debt, founded on .a promis- 
sory note for $1200.00, purporting to have been made 
by the firm of Douglass & Witherspoon, payable to A. 
J. Montgomery, and by him endorsed to the plaintiff. 
This suit is against Douglass alone. The defendant 
pleaded: First, nil debet; and, secondly, a plea in the 
nature of non est factum. Judgment was for the defend- 
ant, and the plaintifi* prosecuted an appeal in error. 

The proof establishes, that the note was made by 
Witherspoon, in the absence of Douglass, and without 
his knowledge; that the consideration of the note was 
$1200.00, in money, borrowed on the credit, and applied 
to the use of said firm, which was composed of the de- 
fendant and Witherspoon. The loan was really made, 
and the money advanced by the plaintiff, through her 
agent. At the time of the loan and the execution of 
said note, a verbal agreement was made, that interest at 
the rate of two and a half per cent, per month should 
be paid on the amount of the note ; but the note was 
taken only for the amount of money actually advanced to 
Witherspoon. 

The Court instructed the jury, that the verbal agree- 
ment of Witherspoon with the plaintiff, in the absence, 
and without the knowledge of his co-partner, the defend- 
ant, to pay two and a half per cent, per month, for 



378 JACKSON : 



Mary W. Bowers v, A. H. Douglass. 



the use of the 51200.00, made the whole contract ille- 
gal and void ; and the plaintiff" could not, therefore, re- 
cover on the note against Douglass. 

This instruction, we think, is erroneous. The case of 
HutchinB v. Turner^ 8 Hum., 415, does not sustain the 
charge. In that case, the usurious interest agreed on 
was incorporated in, and formed part of the nominal 
amount of, the note sued on. Such is not the present case. 
Here, the note was for the actual amount of the loan. 
And, inasmuch as, by our law, the effect of usury is only 
to avoid the contract to the extent of the excess beyond 
the legal rate of interest, it follows*, that there can be no 
valid objection to a recovery on the note. The collate- 
ral, independent, verbal agreement, for usurious interest on 
the loan, does not, in any way, affect the validity cf the 
note. This latter agreement, though illegal and void, is, 
in legal contemplation, separate and distinct from the con- 
tract evidenced by the note. The case, therefore, is 
wholly unlike the case of HutcJdns v. Turner. In the 
one case, the note itself was tainted with usury ; in the 
other, the note is free from any such taint. 

As regards the competency of Montgomery, the payee 
and endorser of the note; for anything appearing in the 
record before us, we perceive no objection to his com- 
petency. 2 Greenl. Ev., sec. 207. 

Judgment reversed. 



APRIL TERM, 1859. 379 



James Bond v. Jno. W. Clay et al. 



James Bond v. Jno. W. Ci^ay et al. 



1. Judicial Sales. Couniy Court. Jurisdiction in netting aside sales 
after confirmation. The jurisdiction of the County Court, under the 
law authorizing the sale, hy that tribunal, of the property of decedent?, 
lor partition. &c., is limited, alone, to the making and completion of 
the sale. After such sale has been completed, by the confirmation 
of tho report, if any matters of equity exists, or should arise, entitling 
the purchaser to be relieved against the payment of the purchase 
money, resort must be had to a Court of Equity. 

2. Same. Same. Same. Code^ ^^ 4204, A205y does not enlarge the juris- 
diction. Sections 4204 and 420') of the Code are merely declaratory of 
the law as it previously existed in regard to the jurisdiction of the 
County Court in sales of property for partition, &c. No new and 
enlarged jurisdiction is conferred upon that Court by the Code. 



FROM HAYWOOD. 



The petition was dismissed by the County Court, and 
Bond, the purchaser, appealed. 

E. J. Read, for the appellant. 

H. J. Livingston, for the defendants. 
McKiNNEY, J., delivered the opinion of the Court. 

Bond presented his ex-parte petition to the County 
Court of Haywood, to be discharged from his purchase 
of certain lands, sold under a decree of said Court for 
the purpose of partition, on the alleged ground of defect 
of title, by reason of the irregularity of the proceedings 
and decree of the Court. 



380 JACKSON: 



James Bond v. Jno. W. Clay et al. 



The sale took place in March ; and at the April 
session, 1858, of said Court, the sale was confirmed, and 
the title to the lands divested out of Clay's heirs and 
vested in Bond, the purchaser. 

This petition was filed in March, 1859, nearly twelve 
months after confirmation of the sale. 

The Court properly dismissed the petition. The case 
falls within the principle laid down in Young v. Shumate^ 
3 Sneed, 369, and other cases, that, after confirmation 
of the sale, the Court had no jurisdiction to administer 
the relief sought by the petition. 

The assumption that, by the provisions of sections 
4204, 4205 of the Code, a new and enlarged jurisdiction, 
in this respect, was intended to be conferred upon the 
County Courts, is, we think, altogether unfounded. 

These sections, in our opinion, arc merely declaratory 
of the law as it previously existed in regard to the 
jurisdiction of the County Court upon the subject, with- 
out vesting in that tribunal any new or more extended 
power or authority. If, in respect to a matter of such 
vital importance to the community, it had been intended 
to clothe that tribunal with an enlarged equity jurisdic- 
tion, we are bound to suppose that such intention would 
have been explicitly declared. For obvious reasons the 
jurisdiction is not to be extended upon doubtful impli- 
cations. 

Decree afiirmed. 



APRIL TERM, 1859» 381 



J. W. Hassell et aL v. Southern Bank of Kentucky. 



J. W. Hassell et ah v. Southern Bank of Kentucky. 

1. Execution, Levy of. What property to be levied on first. It is the 
duty of the officer into 'whose hands an execution is placed, first to 
levy on the personal property of the defendant or defendants, before 
making a levy on land. If there be several defendants, all primarily 
liable, the officer may proceed against the goods and chattels of either 
one to levy the whole debt, leaving the question of contribution to 
be settled among the defendants. And if some of the defendants 
have personal property liable to the satisfaction of the debt, and 
others have not, it is the duty of the officer to proceed against the 
former, or either of them, until property sufficient is found to dis- 
charge the debt. 

2. Same. Return of. Summary proceeding. Case in judgtncnt. The 
officer cannot screen himself from liability for an insufficient return, 
by returning that one of several defendants had no property subject 
to execution. To protect him, his return must show that the money 
could not have been made out of either defendant. Thus, a return 
on an execution against several defendants, ** no personal property to 
be found in my county, of E. W. Tipton," (one of the defendants,) 
** on which I can levy for said debt and cost," is an insufficient 
return, and the officer is liable therefor, upon motion. 



FROM DTER. 



Judgment was rendered against the sheriff and his 
securities, at the October Term, 1856, Read, J., presiding. 
They appealed. 

T. F. Bradford, for the plaintiff in error, cited and 
relied upon the following authorities: Act of 1794, ch. 1, 
§ 23; Crowder v. Sims, 7 Hum., 257-260; Triffff v. 
McDonald, 2 Hum., 386; Miller v. Moore, 2 Hum., 421; 
1 Tenn., 228. 

Cochrane & Enloe, for the defendants in error. 



882 JACKSON: 



J. W. Hnssell et al. r. Southern Bank of Kentucky. 



McKiNNEY, J., delivered the opinion of the Court. 

This was a motion for judgment against the plaintiff 
in error, as sherifiF of Dyer county, and his official sureties, 
for an "insufficient return" of an execution. 

The execution issued on the 11th of August, 1856, 
on a judgment in favor of the bank, against T. F. 
Bradford and four other defendants, returnable to the 
October Term of said Court, and was received by him 
four days after its issuance, to wit, the 14th of August. 

The following return was endorsed on the execution: 

"No personal property to be fbund in my county, 

of E. W. Tipton,'* (one of the defendants,) "on which 

I can levy for said debt and cost. This 16th of 

August, 1856.'* 

"J. W. HASSELL, Sheriff." 

Then follows the statement of a levy, of the same 
date, "upon one tract of land of one thousand acres," 
but not showing whose land it was. And the execution 
was returned with an endorsement that the "land was 
offered for sale, on the 6th day of October, 1856 ; and 
there being no bidders, the execution returned to the 
office." 

It is argued for the plaintiffs in error, that the Court 
erred in sustaining the motion, and the case of Crowder 
V. Si77i«, 7 Hum., 257, is relied on as an authority. 
That case does not apply to the present. We are not 
now inquiring whether or not, if the tract of land levied 
on had been sold, the title of the purchaser could have 
been successfully impeached, on the ground that the per- 
sonal property of all the defendants in the execution had 
not been exhausted, before proceeding against the real 



APRIL TERM, 1859. 383 



J. "W. HasscU et aL r. Southern Bank of Kentucky. 



property of one of them. Be this as it may, it does not 
touch the present question. The inquiry now is simply 
this: Does the return show a suflScient reason, in law, 
why the money was not made according to the com- 
mand of the writ ? That it does not, is too obvious to 
admit of any discussion. Without controverting, for the 
present, any position assumed in Orowder v. Sims, it 
may be observed, that it is the duty of the sheriff, by 
positive law — whether the statute be construed to be 
imperative or merely directory — first to levy on the 
personal property of the defendant or defendants, before 
making a levy on land. If there be several defendants, 
all primarily liable, as in the present case, the sheriff 
may proceed against the goods and chattels of either 
one, to levy the whole debt, leaving the question of 
contribution to be settled among the defendants. And 
if some of the defendants thus liable have personal 
property liable to the satisfaction of the debt, and others 
have not, it is the duty of the sheriff to proceed against 
the former, or either of them, until property sufficient 
is found to discharge the debt. He cannot screen him- 
self from liability by returning that one of the several 
defendants had no property subject to execution. To 
protect him, his return must show that the money could 
not have been made out of either defendant. 

The present return is, therefore, insufficient, as, jirima 
facie, the money might have been made out of either of 
the four other defendants. From the silence of the re- 
turn, it cannot be presumed that they had no personal 
property; and if the fact were so, it was incumbent on 
the sheriff to return that fact affirmatively. 

Judgment affirmed. 



884 JACKSON : 



J. M. Fletcher v. Martha A. Coleman et al. 



J. M. Fletcher v. Martha A. Coleman et al. 

1. Warranty. Husband and wife. Liabiliiy of iJie wife on joint war- 
ranty with the husband. Estoppel. If land is conveyed to the wife, 
with authority to her by joint deed with her husband to dispose of the 
same, and she join her husband in a deed for the land, with covenants 
of warranty, such warranty can only affect her by way of estoppel^ if 
she attempts to assert any title in opposition to the one thus war- 
ranted. She would not be liable on her covenants in the joint deed. 
And it would not prohibit others from acting as trustees for her, and 
thereby secure her a benefit. 

2. Same. Same. Same. Case in judgment. A tract of land was con- 
veyed to the wife, with authority to her to dispose of the same by 
joint deed with her husband. She joined her husband in a conveyance 
of the land to a third person, with covenants of warranty. After the 
execution of this deed, the original vendor filed a bill^ and procured a 
decree for the sale of the land, to pay the purchase money. The trus- 
tee of the fem^ covert bid off the land for her, and gave bond and se- 
curity for the purchase money. Subsequent to the sale, and before 
any title was vested in the feme eoverty the parties and the sureties 
entered into an agreement by which the sureties paid the trustee 
$1,000, and were substituted as the purchasers. Held, that the war- 
rantee of the wife could not be substituted to the title, the wife having 
acquired none, and not being liable on her warranty; nor could he bo 
indemnified out of the $1,000 paid by the sureties. 



FROM SHELBY. 



At the November Term, 1858, Caruthers, J., pre- 
siding, the bill was dismissed on demurrer. The com- 
plainant appealed. 

PosTON k Scruggs, for the complainant. 

The demurrer admits the truth of the several alle- 
gations of complainant's bill. 



APRIL TERM, 1859. 885 

J. M. Fletcher v. Martha A. Coleman ei al. 

The allegations of the bill admitted, the case stands 
as though Martha A. Coleman was the present holder 
of the estate acquired at the sale by the clerk and 
master, and the only question presented for the adjudi- 
cation of the Court, is, whether that estate, the estate 
of a married woman, acquired subsequently to her con- 
veyance with warranty, enured to the benefit of her 
vendee, whose title, under her previous deed, had failed. 
Mark V. Willard, 13 N. H., 389. 

It is said that it will not, because a married woman 
cannot be held liable for damages after the death of 
her husband, upon the breach of a covenant of war- 
ranty; and that, therefore, the reason of the rule which 
causes the subsequently acquired title to enure to the 
benefit of the vendee, does not apply. Such is not, 
however, the course of decision in this country. 

The Courts in this country have holden " that, 
although by a married woman's joinder with her husband 
in a covenant of warranty, she cannot be held liable in 
damages after his death ; yet the covenant will estop 
her, and those claiming under her, from setting up any 
claim to an after acquired title. Rawle on Cov. for 
Title, p. 429; Fowler v. Shearer, 7 Mass. R., 21; 
Colcord V. Swan, 7 Mass. R., 291 ; Ifash v. Spoffordy 
10 Mete. R., 192; 2 Kent, 167, (4th Ed.;) miVs 
lessee v. West, 8 Ohio R., 226. 

In the latter case it is said: "These decisions (re- 
ferring to the cases cited above, which are referred to 
and approved,) may not seem to be founded upon the 
reasons which are usually assigned why the covenants in 
a deed should operate by way of estoppel, that is, to 

prevent circuity of actions; still they seem to us rea- 
26 



386 JACKSON : 



J. M. Fletcher r. Martha A. Coleman et at. 



sonable, and such as tend to the furtherance of justice; 
and when a married woman undertakes, in conjunction 
with her husband, to convey his land with covenants of 
warranty, it is sufficient to protect her from the pay- 
ment of damages for the breach of these covenants. 
For all other purposes they should be held operative." 

See, also, the case of Masaie v. Sebastian, in 4th 
Bibb's (Ky.) R., 436, in which the Court held that "it 
is perfectly clear that neither Breckinridge or his wife, 
after the acknowledgment of the deed to Sebastian, would 
be permitted to claim in opposition to their deed, by 
alleging that they had then no estate in the premises ; 
and as their heirs claiming through them, and any 
stranger to whom they might sell, can be in no better 
situation, they must be, also, equally estopped." And 
cases cited in 4 Bibb, 436. 

The case cited in 17 Johns. E,, 167, Jackson v. Van- 
derheyden^ has been followed by the case in 6 Wendell, 
9, Martin v. Dwelly and they were decided without argu- 
ment or authority submitted. The case of Wight v. Shaw, 
5 Gush. R., 65, is not a case in point. There the con- 
veyance embraced "all the right, title and interest which 
the wife then had," being one-sixth of a certain estate, 
and the effort was to make a subsequent interest, descend- 
ed to her by death of other parties, possessed at the 
date of her covenant, pass by her conveyance* 



W. Gr. Thompson and Sullivan, for the defendants. 



APRIL TERM, 1859. 387 

J. M. Fletcher v. Martha A. Coleman et al. 

Caruthbrs, J., delivered the opinion of the Court. 

Vance sold to Hanna lot 230, in Memphis, and took his 
note for the purchase money, in 1847, reserving in the 
deed a lien. In 1849 Hanna sold and conveyed part of 
the lot to Antwine, who in 1853 conveyed the same to 
Martha A., wife of Walter Coleman, with authority to 
her, hy joint deed with her husband, to dispose of the 
same. This power was exercised by her, with her hus- 
band, in 1864, by sale to complainant, Fletcher, for the 
consideration of J750, with covenants of warranty. After 
this, the original vendor, Vance, filed a bill to enforce 
his lien for the purchase money. A decree was made in 
his favor, the whole lot sold and purchased by E. M. 
Yerger, as trustee for Mrs. Coleman, at 1^1^115, De- 
fendants, Pitman and Taylor, became the sureties, in a 
note at seven months, for the amount of the bid. By 
an arrangement between the parties, the sureties were 
substituted as the buyers, and upon payment of the note 
obtained the title. 

It is charged that they gave Mrs. Coleman a bonua 
of ^fljOOO for the privilege of substitution. 

This bill is filed by Fletcher to assert his right to 
the title obtained by Mrs. Coleman at the Chancery sale, 
by way of enurement, as the title conveyed by her and 
her husband, to him, by their deed with warranty, in 
1854, has thus failed. It is charged that the interven- 
tion of a trustee, and the substitution of Pitman and 
Taylor,' were all fraudulent contrivances to defeat the 
complainant in his right to the benefit of the title 
acquired by her, as the best bidder, at the Chancery 
sale. 



388 JACKSON : 



J. M. Fletcher v. Martha A. Coleman et at. 



The demurrer to this bill was sustained, and we think 
correctly. 

The wife was not liable on the warranty in the joint 
deed to Fletcher. It could only affect her by way of 
estoppel if she attempted to assert any title in opposi- 
tion to the one thus warranted. It would not prohibit 
others from acting as trustees for her, and thereby se- 
curing her a benefit. She did not, in any view, by the 
facts stated, become invested with a title that <jould 
enure to others for any purpose. The incipient step by 
bidding off the property, had only been taken, and with- 
out having paid anything towards the consideration, the 
benefit passed to those who were bound as sureties for 
the bid, and theyy by paying it, properly became in- 
vested with the title. That she obtained a bonus of 
$1,000 in the transaction, can make no difference what- 
ever. The only ground upon which the complainant can 
go in this case, is that the best title was obtained by 
his vendor under this sale, and that it should, in equity, 
enure to him, in aid of the defective title before acquired 
from her. That principle is, certainly, correct when it ap- 
plies. But no title ever accrued to her, or any one for 
her benefit, nor did she ever pay any thing for it. She 
preferred the $1,000 to getting the title by paying the 
$1,176. The true title then passed to Pitman and Tay- 
lor, and the complainant must rely upon his warranty 
for his loss. 

It is also objected that the sale is not good under 
the Chancery decree as to the complainant, because he 
was not a party. That was not material. The vendor's 
lien is fixed upon the land, and he can enforce it with- 
out making all who may have bought it from or under 



APRIL TERM, 1859. 389 



John Cromwell et al. v. Sarah Winchester et al. 



his vendee, parties. He has only to do with the thing 
sold, and his debtor for the price. It is not necessary 
to incumber such cases with intervening purc^Asers, and, 
thereby, increase the burthen by an accupMiIation of costs. 
Affirm the decree. ^- ^ 



John Cromwell et al v. Sarah Winchester et al 

r 

1. Land Law. Words of inheritance. ** Heirs " necfssary to create a 
fee. At common law, the word " ^leirs " is indispensable to convey 

an estate of inheritance. "Without the use of that term in deeds an 
estate for life only, is created. But this rule has been changed in 
Tennessee, by statutory enactment. 

2. Cha>'ckrt Jurisdiction. Mistake. Correction of. It^hy mistake, 
a writing contains less or more, or something different from the in- 
tention of the parties, and this is made to appear by clear and satis- 
factory proof, a Court of Equity will reform the writing, so as to 
make it conform to what the parties intended. 

3. Samjs. Same. Same. Case in judgment. A lot in Memphis was 
conveyed, in 1843, to a trustee, for Mrs. Elizabeth Armour and **her 
children forever." In addition to the intrinsic evidence in the deed, 
parol evidence was introduced to show that it was the intention of 
the conveyor to create an estate in fee. Held, that it was a proper 
case for the interposition of a Court of Equity, to reform the deed, 
po as to make it convey an estate of inheritance, and thereby carry out 
the intention of the parties. 



FROM SHELBY. 



At the November Term, 1858, Judge Caruthers, 
pronounced a decree for the complainants. The defend- 
ants appealed. 



390 JACKSON : 



John Cromwell et al. v. Sarah Winchester et aL 

W. K. PoSTON, for the complainants. 

WiCKBRSHAM & Beecher, Hays & MoRRiLL, for the 
defendants. 

Caruthers, J., delivered the opinion of the Court. 

In 1843, David Winchester, who is now dead, leav- 
ing the defendants, his widow and children, sold and 
conveyed to Cromwell in trust, " for Mrs. Elizabeth 
Armour and children," a lot in Memphis, for the con- 
sideration of 9300. This bill is filed to correct an 
alleged mistake in the deed, by the omission of the 
words of inheritance. The words used are " to the said 
John Cromwell, trustee of Elizabeth Armour, and her 
children forever.'' 

The rigid and well established rule of the common 
law, 4 Kent, 4, 5, &c., that the word heirs is indis- 
pensable to convey an estate of inheritance, and without 
it, only, an estate for life is created in deeds, is recog- 
nized by this Court in Hunter v. Bryan, 5 Hum., 47. 
This rule, though of feudal origin, has been too long 
established to be changed, except by the Legislature. 
This has been done by several of the States, and re- 
cently by our own. But this deed was before our 
statute. This deed is not before us, however, for con- 
struction, but upon a bill to reform it, because of a 
mistake in not inserting words of inheritance, in con- 
formity to the understanding of the parties at the time. 

That this power has been always exercised in proper 
cases by Courts of Chancery, there can , be no doubt. 
1 Story Eq , sec. 152. If, by miatake, the writing con- 
tains less or more, or something different from the in- 



APRIL TERM, 1859. 891 



John Cromwell et al. v. Sarah Winchester et al. 



tent of the parties, and this be clearly made out by 
proof entirely satisfactory, a Court of Equity will reform 
the contract so as to make it conform to such intent. 
But if the mistake is not made entirely plain, and put 
beyond all reasonable controversy, the Court will not 
interpose. It is not easy to reconcile this doctrine to 
the common law rule, which excludes all parol evidence 
to vary or control written contracts, and that it is liable 
to abuse is obvious. But where terms and stipulations 
are inserted, or omitted, by fraud or mistdkej greater 
frauds and injustice would be perpetrated by closing the 
door against any relief, than the rule is designed to prevent. 
Let this be as it may, the jurisdiction of a Court of 
Equity on this subject is well settled. The presumption 
always is strong, that a writing contains the whole con- 
tract, and sets it forth accurately ; but, if it can be 
clearly and indisputably shown, that by fraud or mis- 
take it does not, the presumption fails, and it will be 
reformed. 

The question is, whether, according to theser rules, 
the complainants have made out a case for the relief 
they ask. It is proved by two witnesses that they saw 
the vendor on the day he made the sale, and he said 
he had sold the lot to Cromwell for a certain price, 
which is proved to have been a full and fair one for 
the fee at that day. He made no reservation, said 
nothing about a life estate or a reversion, or the reser- 
vation of any interest. But we are not left to parol 
proof to ascertain the intention of the parties, because 
the internal evidence is conclusive upon the point. In 
a perfectly formal deed in other respects, he conveys 
the lot to John Cromwell, as trustee for Elizabeth 



892 JACKSON : 



John Cromwell et al. v. Sarah Winchester et al. 

Armour, and "her children forever." Although that 
may not he, according to the authorities, equivalent to 
the word " heirs," so as, of itself, to create a fee, yet 
it is enough to show that it was the intent of the par- 
ties at the time, that an estate of inheritance was 
bought and sold, but, by mistake, the proper technical 
word was omitted. It is not possible to suppose that the 
vendor reserved a life estate in the face of the words, 
"and children forever,'* No room is left for con- 
jecture, and the presumption or rule of law, that a 
life estate, only, is intended to be conveyed, because 
the word heirs is omitted, is entirely rebutted and over- 
thrown. Story in sec. 162, says, that this relief is not 
only granted where the mistake is expressly established, 
"but also where it is fairly implied from the nature of 
the transaction." There can be no doubt whatever left 
upon the mind, but that it was the object and intent 
of the parties that a fee was conveyed in this deed, 
and that it was by mistake so written, as not to carry 
out that intent. Perhaps the proof would not be suffi- 
cient for the purpose, independent of this intrinsic evi- 
dence, but with that, it is beyond all controversy. 

We have not thought it necessary to decide the ques- 
tion of the competency of the husband of Mrs. Armour, 
but decide the case without reference to his testimony. 

We think there is no doubt of the correctness of the 
Chancellor's decree granting the relief, and affirm it. 



APRIL TERM, 1859. 893 



J. C. Baker v. Peter Ammon. 



J. C. Baker v. Peter Ammon. 



Practice and Pleading. Pleas sxcorn to. CodCf §J 2886, 2887. By 
the provisions of the Code, the plaintiff, in his pleading, may re- 
quire the answer of the defendant to be given under oath, and the 
answer of the defendant thus put in, has the same force as an answer 
in Chancery requiring two witnesses, or one with corroborating cir- 
cumstances, to overturn it. And this applies to every description of 
plea, or defence, to any civil action at law.* 



FROM SHELBY. 



The defendant having failed to put in bis defence 
under oath, as required by the plaintiff, judgment by 
default was rendered up against him at the January 
Term, 1859, Humpereys, J., presiding. He appealed. 

Treadwell and Vollentine, for the plaintiff in error. 

Smith & Stovall, for the defendant in error. 

Caruthers, J., delivered the opinion of the Court. 

This was an action of debt upon a note for ?1,000, 
in the usual form. The pleas are, nil debet^ payment, 
set-off, and statute of limitations. These pleas were not 
sworn to, as required in the declaration. For that rea- 
son they were disregarded by the Court, and judgment 
by default given against the defendant for want of any 
defence. 



* This provision of the Code is repealed by the Act of 1869, ch. 5, J 1. 



394 JACKSON : 



J. C. Bftker v, Peter Ammon. 



Whether this was erroneous, is the only question; 
and to settle that, the case is brought up, as it seems 
different opinions are entertained, by the Circuit Judges, 
upon it. 

In chap. 9, art. 1, of the Code, this subject is regu- 
lated. The subject is introduced by section 2880, in 
these words : " The pleadings treated of in this chapter 
apply to all actions at law.*' 

Section 2886 provides that "the plaintiff, in his 
pleadings, may require the answer of the defendant to 
be given under oath." 

Section 2887 gives to such pleading the same force 
as an answer in Chancery, requiring two witnesses, or 
one with corroborating circumstances, to overturn it. 

We see no possible way to avoid the conclusion, that 
every description of plea, or defence, to any civil action 
at law, must be under oath, if expressly required in the 
declaration. 

It is a great innovation, but such is the legislative 
will, and we must obey it. The object, doubtless, was 
to prevent expense and delay in reaching a man's rights 
wrongfully withheld. The defendant, it was thought, 
should not be allowed to rely upon any plea, general or 
special, unless he is willing to swear that he believes it 
to be true. He is not permitted to plead that he does 
not owe, did not assume, has paid, is not guilty, or 
interpose any other defence upon which to claim an 
issue, unless it be verified by oath. 

On the one hand it will, doubtless, lead to much 
perjury, but on the other it will prevent unreal or false 
defences, and thereby cut off the law's delay, and ex- 
pedite the administration of justice, where there is no 



APRIL TERM, 1859. 396 



George Threadgill et al. v. Richard Timber! ake ei al. 



true and real defence. It will prevent much recorded 
falsehood in untrue pleas, but may increase false swear- 
ing. It was for the Legislature to decide between these 
evils; and as they have done so, it is only for us to 
enforce their declared will. 
Judgment affirmed. 



George Threadgill et al v. Richard Timberlake et al 



Usury. Wheri it may be recovered back in equity. The rule in equity 
is to apply the excess of interest to the satisfaction of the principal, 
and when that is paid in this way, all that is paid afterwards may be 
recovered by the borrower ns so much money had and received by the 
lender to his use. And this may he done although the party has heen 
sued at law, and failed to make the defence. 



FROM HENDERSON. 



This cause was heard before Chancellor Pavatt, at 
the February Term, 1859. Decree for the defendants. 
The complainants appealed. 

M. & H. Brown, for the complainants. 

W. E. Penn, for the defendants. 

Wright, J., delivered the opinion of the Court. 

The bill in this case is filed to be relieved against 
the payment of a usurious judgment. 



896 JACKSON : 



George Threadgill et al. v. Richard Timberlake et al. 

The facts are these : On the 19th of February, 1853, 
complainant, Threadgill, borrowed of defendant. Timber- 
lake, 9^00.00, and executed his note of that date, with 
the other complainant as his security, for said sum, due 
at the time of its execution. 

They, also, at the same time, executed to Timberlake 
their note for $70, due at one year from that date; 
and, also, on the 14th of July, 1854, complainant, 
Threadgill, with W. C. Threadgill as his surety, gave 
Timberlake another note for 870, due the 20th of Feb- 
ruary thereafter. 

These last mentioned notes are admitted to be for 
illegal interest, reserved upon the loan of the $500.00 
above mentioned. 

On the 3Qth of November, 1855, Timberlake took 
judgment against complainants for $583.32, the same 
being the amount of the $500.00 note with legal in- 
terest. 

They have paid him $566.66, in a note on Bell and 
McHenry, due the 25th of December, 1856, and, also, 
in March, 1857, the sum of $85, out of which the 
sheriff took the costs of the suit at law, leaving $61 
to be credited upon the judgment. 

Timberlake claims the right to apply, as far as ne- 
cessary, the Bell and McIIenry note in discharge of the 
two notes of $70, and to credit the judgment with the 
balance, and in this way, insists that complainants yet 
owe him about $275,00 ; and has caused their property 
to be levied on to pay it. 

The complainants failed to plead or rely upon the 
defence of usury at law. 

The bill is for an injunction and relief against the 



APRIL TERM, 1859. 897 

George Threadgill et al. v. Bicbnrd Timberlake et al. 

judgment, and a decree for any over payment. The Chan- 
cellor dismissed the bill, and gave a decree against com- 
plainants for $274.89 and the costs of this suit and of 
the suit at law. 

This decree is erroneous. The note upon Bell and 
McHenry, and the $61, should have been applied, en- 
tirely, as a credit upon the judgment, and not upon the 
notes for $70. If this had been done, the judgment 
would have been extinguished. 

The rule in equity is to apply the excess of interest 
to the satisfaction of the principal, and when that is 
paid in this way, all that is paid afterwards may be 
recovered by the borrower, as so much money had and 
received by the lender to his use. Boyers v. Boddie, 
8 Hum., 666. 

As to the abatement claimed by Timberlake, of 16f 
per cent, discount upon the Bell and McIIenry note, 
upon the ground that he purchased and took it of com- 
plainants at that rate — the same cannot be allowed, be- 
cause it is new matter, set up in the answer by way 
of avoidance, and not proved. It is not pretended that 
every dollar of the note was not realized. 

As to the costs of the suit at law, they appear to 
have been paid. It was error, therefore, to decree com- 
plainants to pay them. 

The decree of the Chancellor will be reversed, and 
the injunction made perpetual. 

The complainants will have a decree for an account 
upon the principles of this opinion, and a recovery for 
any balance due them. 

Decree reversed. 



898 JACKSON : 



J. U. Criner v. Jacob Pike. 



J. H. Crinbr V. Jacob Pike. 

1. Trespass Exclusive posseasum sufficient to support this action An 
actual and exclusive possession by a party, even though it be by 
wrong, is sufficient to support an action of trespass against a mere 
stranger or wrong-doer, who has neither title to the possession in 
himself, nor authority from the legal owner. 

2. Same. How possession lost. The fact that the property in suit, a 
mare, was in her usual raTige in the woods, or had gone to the defend- 
ant's, in the neighborhood, if this be so, where he killed her, did not 
destroy the plaintiff's possession, so as to prevent him from sustaining 
the action. 

3. Same. MecLsure of damages. Ordinarily, in such cases, the party in 
possession is either the owner of the property, or answerable over to 
the owner ; and in either cose he is entitled not only to damages for 
the taking, but also for the value of the same. 

4. Same. Same. Mitigation. The defendant may prove, in mitigation 
of damages, that the goods did not belong to the plaintiff, and that 
they have gone to the use of the true owner, either by being restored 
to him in specie, or taken upon legal process in payment of his debts. 



FROM HENDERSON. 



At the July Term, 1858, before Judge Williams, 
there were verdict and judgment for the plaintiff. The 
defendant appealed. 

Browx and Pbnn, for the plaintiff in error. 

H. Wright, for the defendant in error. 
Wright, J., delivered the opinion of the Court. 

This is an action of trespass, vi et armis for killing 
a mare, alleged to be the property of the plaintiff. 



APRIL TERM, 1859. 399 



J. H. Criner v, Jacob Pike. 



She was raised on his premises, and there is proof 
tending to show that she belonged to him, and that the 
defendant frequently requested him to keep her up, she 
being in the habit of getting into the defendant's wheat- 
field. He shot and killed her. 

On the other hand, there is proof tending to estab- 
lish that this mare did not belong to the plaintiff, but 
to Mrs. Fowler. 

She was a witness for defendant, and proved that 
she and plaintiff were brother and sister, and lived 
together — their father living with them — until her marriage, 
in April, 1855, when she went away, and desired to take 
the mare with her, but the plaintiff would not permit 
her to do so. And it is to be inferred from the record 
that she left the mare in possession of the plaintiff, and 
never afterwards exercised any further acts of ownership 
over her. The proof discloses none. It is further to be 
inferred, from the evidence, that the plaintiff retained 
the possession and control of this mare until she was 
killed. 

Upon these facts, the defendant requested the Court 
to charge the jury, that if the plaintiff was not the 
owner of the mare, to enable him to recover, he must^ 
show the actual possession of her, which he could no^ 
do if she were running at large in the woods, and thpit 
less than three years adverse possession would not give . 
him a title as against Mrs. Fowler ; and that even if 
he had the actual possession, and the right of property 
was not in him, or was in Mrs. Fowler, then he could 
only recover nominal damages, or not more ^han the 
damage done him by defeating his possession, and could 
not recover the full value of the mare. 



400 JACKSON : 



J. H. Criner v. Jacob Pike. 



These instructions the Circuit Judge refused to give; 
but charged the jury, that if the plaintiff and his sister 
lived together with their father for several years, and 
had raised the mare on the premises, and each of them 
claimed her until the marriage of Betsy, the sister, when 
she went home with her husband, leaving the mare in 
the possession of the plaintiff, and she remained in his 
possession and was claimed by him ever after the mar- 
riage until she was killed; and that, since her marriage^ 
the sister had not claimed the mare by suing for her, 
or taking her in possession, or doing any act of owner- 
ship, then the plamtiff would be invested with such title 
as would authorize him to maintain a suit against a^ 
trespasser having no claim to the property, and to re- 
cover the value of the mare at the time she was killed. 
But that if these facts did not exist, he could not re- 
cover. That a person who -has had a horse beast in 
possession for several years, claiming it, can maintain 
trespass against a person destroying the property while 
in the range, who has no claim to it. 

The jury, under these instructions, rendered a verdict 
in favor of the plaintiff for ' the full value of the mare^ 
and the defendant has appealed in error to this Court. 

We think the instructions to the jury were proper, 
and that the Circuit Judge did right in pronouncing 
judgment upon the verdict. 

It is well-settled that an actual and exclusive posses- 
sion by the plaintiff, even though it be by wrong, i§. 
suflScient to support this action against a mere stranger 
or wrong-doer, who has neither title to the possession in 
himself, nor authority from the legal owner. 2 Greenl. 
Ev., § 618. Therefore, if we were to canclude that 



APRIL TERM, 1859. 401 



J. H. Criner v. Jacob Pike. 



Mrs. Fowler was the owner of this mare, yet it is 
manifest the plaintiff had such a possession as enabled 
him to maintain the action ; and, certainly, the evidence 
warranted the jury in so finding. The fact that the 
mare was in her usual range in the woods, or had gone 
to the defendant's field in the neighborhood — ^if this be 
so— where he killed her, did not destroy the plaintiff's 
possession, especially when we consider she had been left 
with him by Mrs. Fowler for so great a length of time. 

As to the measure of damages, the reason given why 
a party having possession should maintain trespass is, 
that he may have sustained injury by being deprived of 
the goods ; nor should his claim to damages be construed 
strictly. Ordinarily, he is either the owner, or answer- 
able over to the owner; and, in either case, he is en- 
titled not only to damages for the taking, but also for 
the value of the goods. Squire v. Hallenbeck^ 9 Pick., 
551. This is the general rule. A defendant has been 
allowed to prove, in mitigation of damages, that the 
goods did not belong to the plaintiff, and that they 
have gone to the use of the true owner, either by being 
restored to him in specie, or taken upon legal process, 
in payment of his debts; for, in such case, the plaintiff 
is not answerable over. 9 Pick., 651 ; Sedgwick on the 
Measure of Damages, 548. 

But Mr. Sedgwick thinks the principle of these de- 
cisions has been carried quite far enough, and that it is 
of importance to draw the line between good and bad 
faith. Where the party acts with pure motives, and 
endeavors, as soon as possible to repair his mistake, it 
may, says he, be very proper to construe his conduct 

favorably; but it will not do to permit acts of wilfu 
26 



402 JACKSON : 



J. H Griner v. Jacob Pike. 



or wanton trespass to be excused by the defence of out- 
standing titles in third persons. It would lead directly 
to that reckless interference with the property of others, 
which the law always sedulously seeks to prevent. This 
distinction, he maintains, is well laid down in a case in 
New York, where it was held, that where property tor- 
tiously taken by one person from the possession of 
another, is subsequently levied upon, whilst in the hands 
of the tortfeasor, by a third person, under a warrant of 
distress for rent due by the owner, such last taking 
may be shown in mitigation of damages in an action by 
the owner against the tortfeasor, if the latter took the 
property under an honest belief that he had a title to 
it, and not for the purpose of subjecting it to the land- 
lord's warrant. Sedgwick, 548, 549. 

Without stopping to consider of the validity of this 
distinction, it is enough for our purpose, that here the 
defendant is a mere wrong-doer, having no sort of claim 
upon the mare, and that he wantonly destroyed her ; and 
that the plaintiff is either the owner, or had such pos- 
session as made him answerable over to the true owner. 

In such a case, we have been unable to find any 
authority in support of the argument that the plaintiff 
shall not have full damages. 

Judgment affirmed. 



APRIL TERM, 1859. 406 



Henry J. Maley v. N. Tipton. 



Henry J. Maley v. N. Tipton. 



1 . Kkgistration. Vacancy in the office of Register, Deputy Register. 
Act of 1851-2. By tho act of 1851-2, each county register is au- 
thorized to appoint one deputy ; and all deeds previously registered 
by deputies are declared to be valid. The act also provides that when 
the register shall die, the deputy may continue to act until the ap- 
pointment of a successor ; and all instruments registered by a deputy 
during a vacancy in tho office, by death, are declared as effectual as if 
made by the principal regbter. Although a vacancy occasioned by 
the removal of tho register is not embraced by tho words of the act, it 
is within the spirit of the law, and conveyances registered by a deputy 
during such a vacancy are as effectual as if the vacancy had been oc- 
casioned by death. 

2. Same. Same. Register de facto. The acts ot an officer dc facto are 
valid as respects third persons who have an interest in them, and as 
concerns the public, in order to prevent a failure of justice. Hence, 
if the office of register becomes vacant by the removal of the incum- 
bent, and his deputy continues to act, the acts of such deputy, being 
an officer de facto, are valid and effectual without the aid of any stat- 
utory enactment. 



FROM TIPTON. 



This cause was heard before Judge Humphreys, at 
the January Term, 1858. The defendant appealed. 

Small & Foute, for the plaintiff in error. 

I. M. Steele, for the defendant in error, 

McKiNNEY, J., delivered the opinion of the Court. 

This was an action of replevin brought by Tipton 
against Maley, to recover certain goods, wares and mer- 



404 JACKSON : 



Henry J. Maley «. N. Tipton. 



chandise conveyed to Tipton, as trustee, by one Smith, 
for the benefit of creditors. Judgment was for the plain- 
tiff; and the case is brought to this Court, upon an 
exception taken to the registration of the deed of trust. 
The deed purports to have been registered on the 14th 
of January, 1858. The certificate of registration is 
signed thus : " Ben. Sherrod, Register, by J. Morrison, 
D. R." The record shows that Sherrod, the register 
of Tipton county, removed to Texas a day or two be- 
fore the registration of said deed ; whereby the office 
became vacant, and, therefore, it is argued, the regis- 
tration of said deed, by the deputy, was a nullity. 

It is true, that the act of 1823, ch. 5, sec. 1, de- 
clares, that by the removal of a county register out of 
the bounds of the county in which he may have been 
elected, the office shall become vacant; still, we think, 
the registration of the deed is not vitiated on this 
ground. 

A deputy register is an officer known to the law. By 
the act of 1852, ch. 175, sec. 4., each county register 
is authorized to appoint one deputy ; and all deeds pre- 
viously registered by deputies, are declared to be suffi- 
cient. By ch. 48, of the same session, it is provided, 
that when the register shall die, the deputy may con- 
tinue to act until the appointment of a successor ; and 
all instruments previously registered by a deputy, during 
a vacancy in the office, by death, are declared as ef- 
fectual as if made by the principal register. 

The case of a vacancy, by the removal of a reg- 
ister, is not embraced by the words of the foregoing 
enactment, but it is within the spirit of the law. And 
in this view, the registration might well be considered 



APRIL TERM, 1859. 405 

Duncan Thompson v. Sallie Thompson. 

valid ; as it cannot be regarded as of the essence of the 
thing how the vacancy happened — whether by the death 
or removal of the register. But, without the aid of 
any statutory enactment, the registration would be valid 
and effectual, upon the principle, that it was the act of 
an officer de facto^ acting under color of office. It is 
a well established principle, that the acts of such an 
officer are valid as respects third persons who have an 
interest in them, and as concerns the public, in order 
to prevent a failure of justice. 
The judgment will be affirmed. 



Duncan Thompson v. Sallie Thompson. 

1. Payment. Presumption of, after the lapse of sixteen years. If a 
bond or note under seal, be suffered to lie dormant for the space of 
sixteen years, i^ithout demand being made, or payment of interest, or 
other explanatory circumstances to show that it is still in force, pay- 
ment will be presumed upon the mere fact of lapse of time. 

2. Same. Same. Effect of This presumption of payment, like other 
legal or artificial presumptions, derives from the law a certain techni- 
cal force and effect, which courts and juries cannot disregard. Until 
rebutted, or displaced by evidence, it has all the force and effect of 
plenary proof of the fact of payment, and the jury arc bound so to 
regard it. 

3. Same. Less than sixteen years. The fact of payment may bo infer- 
red by the jury from the circumstances of the particular case, in a 
shorter period than sixteen years, but the presumption of law does not 
attach until the full expiration of that time. 



FROM CARROLL. 



Verdict and judgment for the plaintiflf, at the April 
Term, 1858, Fitzgerald, J., presiding. The defendant 
appealed. 



406 JACKSON: 



Duncan Thompson v. Sallie Thompson. 



A. Hawkins, for the plaintiff in error. 
S. M. Joi\ES, for the defendant in error. 
McKiNNEY, J., delivered the opinion of the Court. 

This suit was commenced before a justice, on the 
24th of July, 1857. The foundation of the suit is a 
note under seal, executed by Duncan Thompson to Sallie 
Thompson, on the 22d of March, 1824, for one hundred 
and ten dollars, on which a credit is endorsed for $60.50, 
under date of November 30th, 1826. 

The case was taken, by appeal, to the Circuit Court, 
and on the trial the plaintiff recovered judgment for 
J49.50, the balance due upon said note, with the fur- 
ther sum of $93.30, the accruing interest. 

The defence relied on was the presumption of pay- 
ment. And it is diflScult to see why it did not prevail, 
if the facts be correctly stated in the record before us. 
The jury were probably misled by some things needlessly 
thrown into the charge of the Court, tending to weaken 
the presumption, and to place the onus upon the de- 
fendant. 

The evidence is very brief. The note was made in 
North Carolina, where both the parties (who are brother 
and sister) then repided. Duncan Thompson removed to 
the Western District of Tennessee in the fall of 1826, 
about the time, perhaps, of the date of the payment 
credited on the note. His means were very limited at 
the time of his removal. But the proof fully establishes 
that he has been solvent, and possessed of considerable 
property, ever since his removal to this State, and that 



APRIL TERM, 1869. 407 



Duncan Thompson v. Sallie Thompson. 



he has always been " remarkably punctual " in the pay- 
ment of his debts. The plaintiff remained in North 
Carolina, and still resides there. It is not pretended 
that she was not fully aware of the place of residence 
of the defendant from the time of his removal. It does 
not appear that from the defendant's removal, up to the 
institution of this suit — a period of more than thirty 
years — said note was ever spoken of, or payment thereof 
demanded. 

The rule so often recognized by this Court, that if 
a bond, or note under seal, be suffered to lie dormant 
for the space of sixteen years, without demand being 
made, or payment of interest, or other explanatory cir- 
cumstances to show that it is still in force, payment 
will be presumed, upon the mere fact of lapse of time, 
is not now to be questioned. The fact of payment may 
be inferred by the jury, from the circumstances of the 
particular case, in a shorter period ; but the presumption 
of law does not attach until the full expiration of six- 
teen years. 

This presumption of payment, like other legal or ar- 
tificial presumptions, derives from the law a certain tech- 
nical force and effect, which courts and juries cannot 
disregard. Instead of being of "but little force,*' as 
the Court said to the jury, the presumption, until re- 
butted, or displaced by evidence, has all the force and 
effect of plenary proof of the fact of payment ; and 
the jury are bound so to regard it. 

We are not called on in the present case to say 
what circumstances would be suflScient to repel the pre- 
sumption. It is enough, for the decision of the case, to 



408 JACKSON : 



Levi G. Bullock v. E. W. Tipton et aL 



express our opinion, that the circumstances relied on are 
not sufficient. 

The only facts entitled to any consideration, are, the 
near relationship of the parties, and the removal of the 
defendant, and his permanent residence in a different 
State from the plaintiff. 

These circumstances, after the lapse of nearly double 
the time required to raise the presumption, weigh but 
little. 

It is scarcely necessary to remark, that the evidence 
relied on to displace the legal presumption, ought to 
be more satisfactory in proportion to the length of 
time that may have been suffered to elapse before suit. 

The judgment will be reversed. 



Levi C. Bullock v. E. W. Tipton et ah 



1. Land Law. Orani. Hiatus between the expiration of the act of 
1860, and the passage of the act of 1851. Abandonment of an entry. 
If land was entered previous to the expiration of the act of 1850, but 
no grant issued until after that time, and a third person, during the 
hiatus hetvfeen the 30th of August, 1851, the time the act of 1850 
ceased, and the passage of the act of the 13th of November, 1861, en- 
tered the same land ; but, upon discovering the conflict with the older 
entry, he abandoned his entry, which, being left in the entry taker's 
oflice, was recorded by the deputy without his knowledge, such sub- 
sequent enterer could not hold the land in opposition to the older 
entry. 

2. Same. Entry, Assignment of. If, upon a promise made prior to 
the discovery of said conflict, the second enterer of the land assigns 



APRIL TERM, 1859. 409 



Levi C. Bullock v. E. W. Tipton et aL 



his entry to a third person, without consideration, and with a full 
knowledge of the prior claim, and the abnndonment of the second 
entry, the assignee can have no higher equity than his assignor, and 
could not, by virtue of such second entry, defeat the title of the older 
enterer. 

3. Same. Legal title. Valuable consider at ioru Prior equity, Question 
reserved. If a party procures from the State the legal title to a tract 
of land, and has paid a valuable consideration therefor, will a Court 
of Equity take it from him at the instance of one who, with a full 
knowledge of his previous rights, seeks to come in under an hiatus 
in the extension law upon an entry made upon a mere nominal con- 
sideration ? 



FROM OBION. 



The bill was dismissed by Chancellor Williams, at 
the July Term, 1857. The complainant appealed. 

SoMERS, for the complainant. 

It is insisted: First. That Tipton, by his failure 
and neglect to procure a grant upon his entry, No. 95, 
prior to the 1st of September, 1851, forfeited his right 
to the land, and that the same was then vacant, and 
subject to general entry. 

The act of the General Assembly, passed Jnauary 24th, 
1850, extends the time for making surveys and obtaining 
grants, on all entries before that time made in any of 
the land offices of this State, until the 1st day of Sep- 
tember, 1851. The language of the act is general, and 
includes all entries^ without any reference to the law 
under which they may have been made. Such being the 
case, the act includes the entry, No. 95, in question, 
if the legislature had a right to pass it, or, in other 



410 JACKSON : 



Levi C. Bullock v. E. W. Tipton et al. 



words, if it is constitutional. In the case of William' 
son and Wife v. Throop and Luna, 11 Hum., 265, it 
was decided, that, in case two individuals enter the same 
land, and the younger enterer procures a grant before 
the expiration of the time allowed for that purpose, and 
the elder enterer neglects to procure a grant before the 
expiration of such time, the younger enterer will hold 
the land, the other having forfeited his right by his 
neglect. To the same effect is the case of Sampson v. 
Taylor^ 1 Sneed, 600. The entry of the plaintiff in 
that case was made on the 1st of September, 1851, 
the same day upon which entry No. 216, in question, 
was made. But in both these cases grants had been 
obtained by the younger enterers, and the law under 
which the elder ones were made, required that grants 
should be obtained within a specified time, or the entry 
should be void, or the land vacant, and subject to ap- 
propriation as other lands. In these respects those cases 
differ from the one under consideration ; and it is argued 
that the law under which entry No. 95 Was made, does 
not contain any such condition, or does not provide that 
the entries made under it shall be void, or the land 
covered by them shall be vacant, unless grants are ob- 
tained within a certain specified time ; and that, there- 
fore, the act of 1850, giving until the 1st of Septem- 
ber, 1851, to procure grants upon all entries does not 
apply to said entry. No. 95 ; or, it was intended to 
apply to entries made under the law, by virtue of 
which said entry. No. 95, was made, it is void for want 
of constitutional sanction. If this is so, an entry under 
these laws would be as good a title as a grant, which 
is surely not law. These acts were passed for the bene- 



APRIL TERM, 1859. 411 



Levi C. Bullock v. E. W. Tipton et al. 



fit of the citizen ; the one under which entry No. 95 
was made, passed November 2d, 1847, requires nothing 
to be paid by the enterer but the fees of office. The 
State is not divested of the legal title to land simply be- 
cause it is entered; and it is the duty of all enterers 
to perfect their title, so that the land may be subject 
to taxation ; and we insist the State has a right to 
compel them to do so, or forfeit their entries. This 
entry, No. 95, was made on the 4th of August, 1849, 
prior to that time, (viz,) the 25th of January, 1848, the 
legislature passed an act, giving until the 1st of Sep- 
tember, 1849, to perfect title to all lands and entries 
in the State. We insist that all those acts respecting 
lands, from 1837 to the present time, are to be con- 
strued in pari materia; and that the act giving time 
until the 1st of September, 1849, to perfect titles, is en- 
grafted upon, and constitutes a part of the act passed 
2d of November, 1847 ; and that a proper construction of 
them makes it inoperative upon enterers, to procure grants 
within that time, or forfeit their entries. And we further 
insist, that the act of January 24th, 1850, giving further 
time until the 1st of September, 1851, must be construed 
in the same way. 3 Sneed, 152. 

That the complainant has a right to have the legal title 
to the land, wrongfully obtained by Tipton, divested and 
vested in himself, in virtue of his entry. No. 216, there 
can be no doubt. Meeae v. Crockett, 8 Yer., 129. This 
case decides, that where two persons claimed the same 
land as occupants, and the one having no title, wrongfully 
procured a grant, the other might file a bill, and have the 
title illegally obtained by the other, vested in himself. 
There is no difi'erence in principle between that case and 



412 JACKSON : 



Levi C. Bullock v. £. W. Tipton et cU, 



this. Bullock did all within his power to get a grant. He 
tendered the fee required by law, to the proper officer, 
within the time allowed by law for perfecting his title. 
He has been in no default, and has incurred no forfeiture 
of his rights. 

The act passed January 20, 1850, is in the nature of 
a statute of limitations, and the effect of it was to revest 
the entire title to land which had been entered, unless 
the enterer procured his grant by the time allowed, viz, 
the 1st of September, 1851. 



Cochran & Enlob, for the defendants. 

The act of 1823, ch. 35, sees. 9 and 10, (2 H. & C, 
p. 104,) limiting the time in which entries should be 
perfected into grants, has no application to Tipton's 
entry. 

The system of land law introduced by the act of 
1819, ch. 1, was closed by the act of 1842, ch. 34. 

Up to the date of Tipton's entry. No. 95, there was 
no law limiting the time in which entries made under 
the act of 1842, ch. 34, and the subsequent amendatory 
acts, should be perfected into grants. 

Tipton's entry was made under the act of 1847, ch. 
20, (Nich. Sup., p. 30,) which requires the feds of the 
entry taker, surveyor, register, and Secretary of State, 
all to be paid to the entry taker. (See sec. 1.) 

The act of 1845, ch. 8, sees. 2 and 3, requires the 
entry taker to procure the grant ; and the act of 1847, 
ch. 20, does not repeal that provision of the act of 
1845, ch. 8, but rather confirms it, by the absence of 



APRIL TERM, 1859. 418 



Levi C. Bullock v, E. W. Tipton et aL 



any repcaliDg clause, and more especially by the require- 
ment that all the fees shall be paid to the entry taker. 

Thus, Tipton, by his entry, stood in the attitude 
of a purchaser for a valuable consideration, and it was 
the duty of the State to make the title. 

These circumstances repel the idea, that any of the 
acts limiting the time for the issuance of grants, were 
intended to apply to this character of entries. 

Any act passed subsequent to the date of Tipton's 
entry, could not affect his right. 

His entry was a contract between him and the State, 
and he had a free-hold estate in the land. No subse- 
quent conditions could be annexed to the contract, nor 
could he be divested of his free-hold by subsequent 
legislation, if there be any such intended to apply to 
the case. Terrell v. Murray, 2 Yen, 386, 887 ; 4 Kent, 
23, (8th edition); Bill of Rights, sec. 8, (C. & N., 46); 
Constitution, sec. 10, Art. 1, (C. & N., 12). 



Wright, J., delivered the opinion of the Court. 

This is a bill to divest out of the defendant, Tip- 
ton, the title to 730 acres and 80 poles of land in the 
county of Obion, claimed by complainant. 

The facts of the case are these: On the 4th of 
August, 1849, Tipton made a consolidated entry for 
1200 acres, under the provisions of the act of 1847, 
ch. 20. 

In October, 1840, six individuals, whose names are 
given in the record, being, separately, the owners of 



414 JACKSON : 



Levi C. Bullock ©. E. W. Tipton et at. 



small certificate warrants issued by the register of West 
Tennessee, amounting in the aggregate to 141 and 4-9th 
acres, caused several entries to be made of the same, 
in their respective names, in the entrj taker's office of 
Obion county ; and being thus the owners of these 
small tracts, they caused the same to be enlarged to 200 
acres each — under the occupant laws of the State, pro- 
viding for extension rights — and, also, had the same en- 
tered in their respective names. These tracts constitute 
the 1,200 acres before mentioned. 

Tipton became the assignee of these warrants and 
extension entries, and for the purpose of obtaining a 
grant, made the consolidated entry aforesaid — ^having paid 
to the entry taker the fees that were allowed by law, 
to the entry taker, surveyor, register, and Secretary of 
State, in obtaining grants. But the State did not issue 
the grant to him till the 1st day of January, 1856. 

On the 1st day of September, 1851, S. W. Coch- 
rane made an entry of the land claimed by complain- 
ant, and which, in part, conflicts with Tipton's entry 
and grant; but being subsequently informed of the con- 
flict, he determined to abandon his entry, but the same 
being left on file in the entry taker's office, was re- 
corded by the deputy entry taker without his knowledge. 

It seems, that prior to the discovery of the conflict, 
Cochrane had proposed to give this entry to the com- 
plainant ; and, as we take it, from the record, without 
any consideration. At all events, none appears, and we 
are satisfied none was paid. Complainant does not al- 
lege or pretend there was any. But, notwithstanding 
these facts, and with a full knowledge of Tipton's prior 
claim, he insisted that Cochrane should permit him to 



APRIL TERM, 1859. 415 



Levi C. Bullock v. E. W. Tipton ei al. 



have the benefit of the entry ; and Cochrane did, ac- 
cordingly, on the 13th of August, 1855, assign it to 
him, without consideration — informing him at the time of 
Tipton's prior right — and of his determination not to 
claim the entry. 

Afterwords, and on the 12th of December, 1855— 
complainant caused this entry to be surveyed, and ten- 
dered the plot and certificate of survey, with the fees 
of office, to the entry taker, who refused to receive the 
same, because of the existence of Tipton's prior right. 

The complainant insists that Tipton's right to obtain 
a grant, by force of the act of the 24th of January, 
1850, expired on the 30th of August, 1851, and that 
in consequence of the hiatus in the law — extending the 
time to obtain grants — between that time and the act of 
the 13th of November, 1851, Tipton's entry became 
vacant, and subject to his entry, and that he now has 
a right to divest the legal title out of Tipton. 

The Chancellor decreed otherwise, and we think his 
decree was right. It is manifest complainant has no 
equity to move a court, actively, in his behalf. This is 
so upon general principles. It is not necessary for us 
to decide the question debated here, whether after Tip- 
ton — under the act of 1847, ch. 20 — had paid the fees 
allowed by law to the entry taker, surveyor, register 
and Secretary of State, and had done every thing re- 
quired at his hands in order to obtain a grant, leaving 
nothing but the simple duty upon the State, and its 
officers, to issue it — the Legislature intended, by the 
subsequent legislation, to impair his rights— or if so in- 
tended, could do so — ^because we think it is enough that 
Cochrane himself, having abandoned his entry, and yielded 



416 NASHVILLE : 



f.' 



^^ 






'^^-'TH^ Levi C. Bullock v. E. W. Tipton ci cU, 




to Tiptpn's prior title, could have no equity against 
Tipton ; and comp inant is, necessarily, in his shoes, 
having' n^ higher equity. 

There has been no hiatus in the law, securing Tip- 
ton's rights, since the 13th of November, 1861 — and if 
no right remained in Cochrane during the hiatus of that 
year, which he could enforce against Tipton — and we 
have seen that none did — how can complainant, by the 
assignment to him in 1855, when Tipton's title had per- 
fect vitality, by relation to the entries in 1840 — acquire 
any equity ? We are unable to see. 

It may, also, be remarked, that as to the 141 and 
4-9th acres held by Tipton under the certificate war- 
rants, the same were protected from Cochrane's entry 
upon the principle of the case of Fogg et al. v. Wil- 
Hams and Hill, decided at the present Term of this 
Court. 

There are other grounds, possibly, placing the equity 
of this case with defendant, Tipton. He has the legal 
title, and has paid a valuable consideration for it; and it 
may well be questioned — consistent with the case of Samp- 
son V. Taylor^ 1 Sneed, 600 — whether a Court of Equity 
could be moved to take it from him, at the instance of 
one T/ho — with a full knowledge of his previous rights — 
seeks to come in under a hiatus in the extension law, 
upon an entry made upon a mere nominal consideration. 
In such a case, are not the equties of the defendant, 
at least equal to those of complainant, and having the 
legal title, ought he not, in a Court of Chancery, to 
prevail? But we do not mean to settle this now, being 
enabled to put this case on other grounds. 

The decree of the Chancellor will be affirmed. 



APRIL TERM, 1869. 



417 



James B. 8eay et al. v. £. O. Young et al 



James B. Seat et al v, E. G. Young et 



1. Will. Oon^trtictum, Life eatatek Remainder, The tesUto' 

queathed certain property to bis wife, durincr, her widowhood, and 
then pro\nded : ** And at her death or marriagi) the eaid land and 
negroes, with their increase, to be equally divided among my children 
and surviving heirs of the body of those who may have deceased 
before that period, except the children of my daughter Nancy.'' * * 
** It is ray will and desire that my wife keep possession of the property 
of such of my children as may be under age, without paying hire^ as 
a compensation for maintaining and educating said children ; and an 
tbey arrive of lawfiil ago, or marry, my executors are authorized and 
required to allot to such child or children an equal part," t&c ** And 
At the death or marriage of my wife, I desire that my whole estate be 
equally divided among the following children: I mean and wish it 
clearly understood before I name them, viz : It it$ my express meaning 
and wish that all my child re;) ^hare alike in my general estate, and all 
those who have not received any part thereof, are to be made equal 
with mv children beforementioned, viz :" • • ** to them and their 
lawful issue, or the survivors of thein, as before stated, forever. And 
if any of my children should die before they come of age, or marry, 
(or, in that case, leave no child,) it is my will and desiru that their 
part or parts be equally divided among the eurvivors of them, or their 
lawful issue, except the children of my daughter Kancy, to whom I 
have given all I intend." The widow survived the marriage of her 
daughter Jemima, but died first. A negro girl, Leah, was allotted 
to Jemima upon her marriage or arrival at age. This suit is by the 
children of the daughter, Jemima, to recover said slave Leah and her 
increase, she having been sold by the husband. It is held: 

1. That the widow took an state for life or widowh^xid in the land 
and slaves given her, and, at her death or marriage, the same, with 
its increase, wa^ to be equally divided among such of the testator's, 
children as may ilien be living, and the surviving Issue of such of his- 
children as may ha\'e died before that period, exo<»pt tlie children of 
his daughter Nancy. 

2. That if a child died before the period of division, viz, the death 
or marriage of the widow, leaving children who remained alive until 
fho period of division, then they tcM)k the share of the deceased child ; 
but if such child left no children living at the time of the division^ 
the share of the child went to the surviving children, and the surviv- 
ing issue of such as may have died before that period. 

27 




418 JACKSON : 



James B. Seay ei al v. E. 6. Young et al. 

3. That DO remainder was created in favor of any of the grand- 
children cf the testator whose parents were living when the particular 
('State of his widow ceased ; and the daughter, Jemima, took an abso> 
lute estate in the woman Leah and her increase, and the title to them 
parsed hy the marriage to her hushand, who might sell or otherwise 
dispose of them. 



FROM HAYWOOD. 



This cause was heard before Chancellor Williams, at 
the February Term, 1859. Decree for the defendants. 
The complainants appealed. 

Rains and Black, for the complainants. 

T. G. & W. M. Smith, for the defendants, cited 2 
Wills, on Exr., 927, 928, 929, and 932; Simpson v. 
Smithy 1 Sneed, 394; Randolph v. Wendel^ 4 Sneed, 646; 
Thompson v. McKisick^ 3 Hum., 635; 2 Ter., 557; 
■2 Jar. on Wills, 328 et seq. ; 2 Wills, on Exr., 951 et 
seq.; 7 Ter., 519; 8 Edwards' Ch. R., 1; 15 Pick., 104; 
2 Lomax on Exr., 19; Pastell v. Pattell, 1 Bailey 
■Ch., 390. 

Wright, J., delivered the opinion of the Court. 

This is a bill filed by the complainants, James B. 
-Seay and Joseph S. Seay, who are infants, to recover 
of the defendants, Young and Cowan, -a slave by the 
name of Leah, and her children, five in number. 

The title supposed to exist in complainants is derived 
from the will of their grandfather, William Peatraas, of 
•Caroline county, in the State of Virginia, who died in 
the year 1808. 



APRIL TERM, 1859. 419 

James B. Seay et al r. E. G. Young et al. 

They allege, that under said will, their mother, Je- 
mima, who was a daughter of the said William Peatirass, 
the testator, took a life estate in the slave Leah, with 
remainder to thftm, as her only children ; and that the 
other slaves being the offspring of Leah born since the 
will took effect, they are now entitled to recover the 
whole of them, their mother being dead. 

The said will was made and took effect in the State 
of Virginia, where the testator lived and died, some- 
where between the years 1826 and 1829; Jemima Pea- 
trass then having, as it is probable, arrived at the age 
of twenty-one years, intermarried in said county of Caro- 
line with William B. Seay, the father of the complain- 
ants, who are the only issue of that marriage, and 
either shortly before or after the mnrriage, received into 
possession the slave Leah, under said will; after which 
she and her husband, with said slave, removed to the 
county of Haywood, in this State, where the said Je- 
mima departed this life, in the year 1842. 

The defendants claim tivA slaves by purchase, mnde 
of the said William B. Seay, the father of complainaits 
and husband of Jemima, in the year 1846. 

They deny that complainants took any remain* I er 
under said will, and insist that the slave Leah, by the 
force of said will, became the absolute property of the 
said Jemima; and that, upon her marriage witli William 
B. Seay, the slave became his, and that he might law- 
fully sell her to them, an.d that they acquired a perfect 
title. And the question is, whether complainants or de- 
fendants have the better title? 

The clauses of the will, upon the construction of which 
ihis contest depends, are as follows, to wic: 



420 JACKSON : 



Jamee fi. Seaj ei al. t. S. G. Young ei aL 



"To my beloved wife, Amy Peatrasa, I lend the land 
and plantation whereon I reside, together with Randal 
and Milly, also her choice of one fellow and one woman 
df my estate, during her widowhood ; and, at her deaths 
or marriage, the said land and negroes, with their in- 
<rrease, to be equally divided among my children and 
•urviving heirs of the body of those who may have de- 
ceased before thut period, except the children of my 
deceased daughter, Nancy Haden, to whom, in her life- 
time, I lent two negroes, to wit: Abram, a man, and J^ 
russe, a girl; and it is my will and desire that those two 
negroes and their increase be equally divided among my 
grandchildren, by my daughter Nancy, deceased, when 
they come of age or marry, or when either of them 
marry or come of age. To this branch of my family I 
leave no more of my estate* 

" Item. — It is my will and desire that my wife keep 
possession of the property of such of my children as 
may be under age without paying hire^ as a compensur 
tion for maintaining and educating said children; and a» 
they arrive of lawful age^ or marry, my executors are 
authorized and required to allot to such child, or chil- 
dren, an equal part with my son Richard, who has re- 
ceived a negro boy, Jerry, and a girl. Amy, horse^ 
saddle, and bed and furniture; also, my daughter Jane, 
who has received a negro woman, Rachel, and a child, 
Hulda, horse and saddle, bed and furniture; also, my 
daughter Polly, I give a negro boy, Moses, and a girl^ 
Judy, horse and saddle, bed and furniture — ^none of 
which she has received, except a bed and furniture. 
But if, when such allotment or division is made, there 
should not be enough to give to each of those ohildrea 



APRIL TERM, 1859. 4*21 



Jam«t B. Beay et al. r. E. O. Young ti al. 



nrho may be of »ge, or marry, an eqoal portion with 
my beforementioned children, Richard, Jane, and Polly, 
in that case they will only receive a proportion of what 
may be, exclaaive of the part left my wife, at whott 
death, or marriage, I desire that my whole estate fae 
equally divided among the following children : I mean 
and wish to be clearly understood before I name them, 
vis : it is my express meaning and wish that all my 
children share alike in my general estate, and all those 
who have not received any part thereof, are to be madi^ 
equal with my children beforementioned, viz : . Richard, 
/ane, and Polly, to whom I have lent and given already, 
near, or quite as much, except my daughter Polly, whn 
had only received the bed and furniture beforementioned, 
U> wit: Richard, Matthew, William, Jane, Amy, Polly, 
Barbara, Walter, Sally, Samuel, Betsy, Susannah, Re^ 
beccfls ^i^d Jemima, to them and their lawful issue, oir 
the survivors of them, as before stated, forever. And 
if any of my children should die before they com^ of 
age, or marry, (or, in that case, have no child,) it h 
Qiy will and desire that their part or parts be equally 
divided isimong the survivors of them, or their lawful 
issue, except the children of my deceased daughtev 
Fancy, to whom I have given all I intend." 

The testator then, in order that there might be iw 
difficulty in making an equal division among his childret^ 
Irhen the period for the final division should come, em- 
powers his executors to assess the value of the propect^ 
already given off to his children, or to select three di^ 
interested men to do so. And, lastly, he gives to hui 
irife, during life or widowhood, certain chattel property, 



422 JACKSON: 



James B. Seay et al. v, £. 6. Young et dU 



and provides, that at her death or marriage, the same 
be divided '^as before stated." 

It is probable, from this record, that Amy Peatrass, 
the widow of the testator, survived the marriage of her 
daughter Jemima, but died long before the death of said 
Jemima. At all events, it is shown that the slave, Leah, 
was allotted to the said Jemima, under the second clause 
of the will, upon her coming of age, or marriage, and 
not in the general division of the estate. 

There can, we think, be no doubt, upon a proper 
construction of this will, that complainants took no in* 
terest whatever in the slave Leah ; and that, in the events 
that have happened, she became the absolute estate of 
their mother, the said Jemima, and passed, by the mar- 
riage, to her husband, William B. Seay, who had a 
right to sell her and her offspring to defendants. 

In the construction of this will, all its parts are to 
be taken with reference to each other, and the intention 
of the testator collected from the entire instrument. 1 
Sneed, 894. 

The true meaning of the first clause of the will un- 
doubtedly is, that the widow of the testator is to have 
an estate for life, or widowhood, in the land and slaves 
given her ; and, at her death, or marriage, the same, 
with its increase, is to be equally divided among such 
of the testator's children as may then be living^ and the 
surviving issue of such of his children as may have died 
before that period, except the children of his daughter 
Nancy. 

If a child died before the period of division, viz : the 
death or marriage of the testator's widow, leaving chil- 
dren who remained alive until the period of division, then 



APRIL TERM, 1859. 423 

JameB B. Seaj et <U. v, £. G. Young et al. 

they took the share of the deceased child; but if the 
child left no children, or there were none at the time 
of division, the share of that child went to the surviv- 
ing children, and the surviving issue of such as may 
have died before that period. 

It is manifest no remainder was intended to be cre- 
ated in favor of any of the grandchildren of the testator 
whose parents were living when the particular estate* of 
his widow ceased; and that under this clause complainants 
can claim nothing, their mother having survived the wjdow 
of the testator. 

And it is equally plain the second clause of the will 
hath this extent and no more. The devise to all his 
children in that clause, and the words ^^to them and 
their lawful issue, or the survivors of them, as before 
stated, forever,'* have precisely this meaning. 

The words *' as before stated," refer expressly to the 
first clause, and can have no other meaning than that 
the children alive at the period of the final division, 
and the children then living of such as may have died, 
(except the children of Nancy,) are to take an absolute 
estate. 

These words controlled the estate to be divided at 
the death or marriage of the widow, and then to pro- 
vide for the care of children who might be under age 
or unmarried at the period of general division, (the 
death or marriage of the widow being possible at any- 
time,) and who might die before they came of age or 
married, or the case of married children who should 
die without child ; and to cover the entire share of 
each child in the estate, the will ' further provides : 
'^ And if any of my children should die before they 



424 JACKSON c 



John J. MatthewBon et. al. v. W. J. Sponoer. 

couxe of age, or marry, (or, La that oase, have no child^ 
t. ei, in oase of marriage,) it is my will and desire thai 
tjieir part or parts be equally divided among the sur- 
vivors of them and their lawful issue, except the ohil- 
drea of my deceased daughter NaDcy, to whom I hav* 
given all I intend." 

It will thus be manifest that Jemima's share was an 
i^bsolnte interest, unless she died under twenty-one, UU" 
married, or without issue, upon which events there wan 
an executory devise in favor of her surviving brothers 
and sisters, and the issue of those deceased. But ther» 
was no remainder or interest to her children in tha 
events that have happened, and the ulterior interests, 00 
to her sharej are all defeated, because the events on 
which they depended never occurred. 

The Chancellor 60 held, and we affirm his decree. 



1 1* '1 fc « m' . ■» I »» I  »» '»»■   «   !■ « »» i^ 



JoH5 J. Matthbwson «t al. t^. W. J. Spbnceb. 



Lk^D Law. FJjectment Construction. Trust deed. Notice of gale, H. 
gold a tract of land to B. and J., and executed a bond for title on 
payment of the purchase money, for which notes were executed^ 
Afterwards H. made an assignment of these notes and his title to tho 
land to A., for the benefit of creditors, reciting in the deed his pre- 
vious sale to R. and J., and his obligation to make them a title upon 
payment of the purchase money The deed provided that if the notes 
were not paid within a reasonable time, the trustee, A., should di^pos# 
of them to the highest bidder, at public auction, the sale to be madt 
at the court-house, after giving notice thereof for the space of twenty 
days by public advertisement at three or more public places. Th* 
truttee sold the notes of B. and J., to M., at public auction, and ex* 



APRIL TERM, 1859. 425 

 — 7 ' ' 

John J. MatthewBon ei al. v. W. J. Spencer. 

^pQ%ed to him a deed in fee to the land. Ailer wards R. and J. paid 
(he purchase money to <>[., who, thereupon, conreyed said land, in 
fee, to them. In the conveyance from the trustee to M , and frozt 
him to R, and J., the covenant to convey^on payment of the pur» 
diase money, executed hy H. to R. And J-, is specially recited* 
HeLl, 

1. That, by the pro()er construction of the deed from H. to A-, the 
lauds previously sold by A. to R. and J. were not intended to be sold 
hy the trustee, but the objit^t was mereiy to enable the trustee, on 
oollecting the notes from K. and J. to transfer to them the title, iix 
pursuance of the bond before mentioned ; or, if they failed to pay in 
a reasonable time, and a sale of the notes at public auction should 
become necessary, that the trui^tce might be In a condition to transfer 
the title to the purchaser, as a security to him for the payment of said 
notes. And, by the conveyances thus made, R. and J. acquired ^ 
VHlid title to the land. 

^. That a stranger to the title thus derived from H., and a tn^* 
passer upon the premises, cannot be heard to set up, as an objection to 
the validity of the title of R. and J., that it does not appear that the 
twenty days* notice of the sale of their notes was given by the trus^ 
tee, even if the title could be eucce^t fully assailed on this ground, by 
• party in interest 



FROM Mi^DISON. 



This cause was tried at the September Term, 1858, 
before Judge Read. Verdict and judgment for the dot 
fendant. The plaintiff appealed. 

McLanahan, for the plaintiffs. 

Stephens, Bullock, and Brown, for the defendant 

McKiNNET, J., delivered the opinion of the Court 

This case is broughx here, for the third time, upon 
a question not before presented for our consideration. 



426 JACKSON: 



John J. Matthewson et al. v. W. J. Spencer. 



The point now is, another supposed chasm in the plain- 
tiff's chain of title. The facts upon which the objection 
rests, are these : 

James Hart, of North Carolina, being the owner of 
the tract of land in controversy, on the Slst day of 
March, 1830, bargained and sold said tract, with sev- 
eral other tracts, situated in the western district of 
Tennessee, to John Bay and John Jenkins, and executed 
a bond for title, binding him3elf to convey said lands to 
them when the purchase money should be paid ; the same 
being payable in four annual instalments, for which their 
bills-single were executed to him. 

Afterwards^ on the 15th of December, 1830, said 
James Hart made a conveyance to Andrew Hart, by 
which he assigned to the latter, in trust for the benefit 
of creditors, all his bonds, bills, notes, and other evi- 
dences of debt, including the notes of Ray and Jenkins, 
given for said lands; also, all his personal property; also, 
eight tracts of land in Carteret county. North Carolina: 
And in said deed, James Hart likewise conveyed to said 
trustee, all his right, title, and interest in and to said 
lands previously bargained and sold to Ray and Jenkins; 
and reciting particularly in said trust deed his previous 
sale of said lands to Ray and Jenkins, and his obli- 
gation to make title to them on payment of the pur- 
chase money due on the before mentioned notes assigned 
to said trustee. 

In the deed of trust it is provided, that if the bonds, 
notes, and other evidences of debt therein specified and 
assigned, were not collected within a reasonable time, the 
trustee should dispose of them to the highest bidder, at 
public auction. 



APRIL TERM, 1859. 427 

John J. Matthewdon et cd. v. W. J. Spencer. 

^ The deed likewise provides for the sale of the real 
and personal property therein conveyed, and directs that 
the sale shall be at the court-house of Carteret county, 
and that notice thereof, for the space of twenty days, 
shall be given by public advertisement at three or more 
places in said county. 

Afterwards, on the 18th of July, 1831, the trustee 
sold said notes of Ray and Jenkins to one Thoir.as Mar- 
shall, at public auction: And, on the same day, the 
trustee executed to him a deed of conveyance, in fee, for 
said laads bargained and sold by James Hart to Ray 
and Jenkins. And on the 20th of September, 1831, 
Thomas Marshall conveyed said lands in fee to said Ray 
and Jenkins. In both of said last mentioned conveyances, 
the covenant to convey, on payment of the purchase 
money, executed by James Hart to Ray and Jenkins, is 
specially recited. 

In this way, Ray and Jenkins, having paid the 
purchase money, acquired the legal title to the lands 

covenanted to be conveyed to them by James Hart, as 
before stated. 

And the question to be determined is, whether or not 
the title thus acquired by them is a valid one. Its 
validity is denied by the counsel of the defendant, on 
the ground that the trustee did not pursue the power 
conferred upon him by the deed of trust. The specific 
objections are, first, that the trustee conveyed the lands to 
Marshall without a sale at public auction; and, secondly, 
that it docs not appear that twenty days' notice of the 
sale of the notes of Ray and Jenkins was given by 
the trustee. 

The first objection is founded upon a misconstruction 



428 JACKSON: 



John J. Matthewson et at. v. W. J. Spencer. 

 i^i^^»^»^— ^^i^J^^ii^i^^MBi 1 .1 I I p I I ■iiiiM Mi<B   aw  ■— ^^— ^— ^B—  M^.  I  ^   ^a^^—  MM I ■■—  , 

of the deed. It is manifest, from the whole instrument) 
that the lands previonslj bargained and sold by Jame< 
Hart to Ray and Jenkins, were not intended to be 
sold by the trustee. No such thing was contemplated* 
It Is obvious that the object of James Hart, in convey^ 
ing the legal title to said lands co the trustee, was 
iperely to enable him, on collecting the notes from Ray 
and Jenkins, to transfer to them the title, in pursuance 
of the bond for title before mentioned ; or, if they failed 
to pay in reasonable time, and a sale of the notes a^ 
public auction should become necessary, that the trustee 
might bo in a condition to transfer the legal title to 
the purchaser as a security to him for the payment of 
SiUd notes. The instrument admits of no other reasonabi* 
at sensible construction. 

As regards the second objection, it would not bo 
going too far to say, perhaps, that as more than twenty 
years elapsed from the time of the sale of the notes 
before the institution of the present action, it might 
properly have been left to the jury to presume that the 
twenty days' notice had been given by the trustee. But^ 
for the sake of the argument, let this presumption hn 
rejected, and let it be admitted that the notice was nol 
given; still, we are of opinion, that the defendant, who 
is a stranger to the title derived from James Hart, and 
a trespasser upon the premises, cannot be heard to set 
Up this objection to the validity of the title acquired by 
Ray and Jenkins, if, indeed, it be an objection at alL 

We do not intend, by any means, to question the 
correctness of the general principle, that where a specifio 
mode of executing a power is prescribed, that must b9 
poreued. Nor do we stop to inquire whether or not the 



APRIL TEBM, 1859. 439 



Tbomas 8. l^ilipB v. laaac Sampson. 



title in questiou might be successfully assAiled, by a 
party in interest, on the ground of the supposed omis'- 
Mon of the trustee to give notice. It is sufficient for 
the present determination, to say, that the defendant 
does not occupy such a relation to the transaction as 
entiltes him to raise any such question^ 

Bay and Jenkins acquired precisely the tkle they 
had contracted for with James Hart, and they ao* 
quired it, substantially, in the mode stipulated in the 
covenant for title. True, James Qart did not» in proper 
person, execute the conveyance to them; but it was 
made with his consent and by his authority, through 
the medium of others, in a mode approved by him; %jtid 
in reason, as well as in law, this was equivalent, (o 
every intent and purpose, to an execution of the ooPr 
tract by himself. 

From this view it results that the judgment i0 f^T(^ 
neous. It win be reversed, and the case will be r^ 
manded for a new trials on the merits. 



Thomas S. Philips v. Isaac Sampson. 



1. FoRCiBLB £wTRT AND Dktainsb. Three years jfoaeesaian. The 
uninterrupted possession of the premises in controversy, by the de- 
fendant, continuously, for the space of three years immediately pre- 
ceding the commencement of the action, is, if the estate of the defend- 
ant has not determined within that time, a bar to any proceeding by 
writ of forcible entry and detainer. 

2. Samk. When Htls may be enquired into. As a general rule, the title 
can not be enquired into, in this form of action ; yet it is admissible 



430 JACKSON : 



Thomas S. Philips v. Isaac Sampson. 



to look to the title to define the boundaries ; or, in view of the ques- 
tion of damages, or rents to be recovered in an action brought by a 
more intruder against the rightful owner of the land ; or, where the 
claimant by fraud induces another to take a lease, or to entfer under 
him, upon a false representation as to his title. In' such cases, and, 
perhaps, others, the title may be looked to, in the determination of the 
question, whether the case made out constitutes, in law. a wrongful 
entry or detainer. 

Sam9> Evidence. Case in judgment. Both claimants derive title 
from the same source— one dating back to 1795, and the other to 1838. 
The premises were rented by the agent of the older claimant to a 
tenant for the years 1847 and 1848. At the end of 1848 he rented it 
to the defendant, who held under that title until this suit was insti- 
tuted. The other claimant procured an instrument of writing, pur- 
porting to have been executed on the 18th of November, 1848, from 
the person in possession that year, recognizing his tenancy under him, 
and agreeing to deliver the possession to him on the first of January, 
1849. Hdd^ that the instrument of writing thus executed, the party 
being a competent witness, is inadmissible as evidence of the character 
•of his holding ; and the three years continuous possession of the ten- 
Ants under the elder claimant, is a bar to the action of the plaintiff. 



FKOM DYER. 



This cause was heard before Judge Williams, at the 
February Term, 1859. Verdict and judgment for the 
plaintiif. The defendant appealed. 

Rains and Carthel, for the plaintiff in error. 

M. R. Hill and F. G. Sampson, for the defendant 
in error. 

McKiNNBY, J., delivered the opinion of the Court. 

This was an action of unlawful detainer, brought by 
Sampson against Philips, the tenant of Henry W. Con- 



k 



APRIL TERM, 1859. 431 

Thomas 8. Philips v. Isaac Sampson. 

ner, on the 19th of September, 1850, to recover pos- 
session of a tract of land lying in Dyer county, con- 
taining five hundred and ninety- five acres. The plaintiff 
recovered, and the defendant prosecuted an appeal in 
error to this Court. 

It appears from the record, that Sampson and one 
H. W. Conner both claim title to the land under one 
Henry Rutherford. The latter conveyed to James Conner, 
on the 28th of September, 1795, and he to Henry W. 
Conner, on the 25th of April, 1834. Sampson claims 
under a deed dated 25th of January, 1888. 

It is proved by Philips, a witness for plaintiff, that 
in the year 1839, Sampson put a tenant in possession 
of part of said land, who remained thereon till the 
close of the year i841, when the witness rented from 
Sampson, and held possession under him up to the last 
of the year 1845. Soon after witness left, one Petty- 
john went into possession, who told' witness that he had 
rented from Sampson, but afterwards said he had not 
rented either from Sampson or Conner.- Philips further 
stated, that in the latter part of the year 1848, before 
Christmas, Pettyjohn quit the place; and his wagon, 
"that carried out his property, moved in the defendant, 
Philips," who still continues in possession. 

Miller, the agent of Conner, (who is a resident of 
Charleston, South Carolina.) proved that, at the end of 
the year 1846 or first of 1847, he, as the agent of 
Conner, rented the land to Pettyjohn (who was then 
in possession) for the years 1847 and 1848; and, at the 
end of the year 1848, be rented to the defendant, 
Philips, who went into possession when Pettyjohn left. 



482 JAOESON : 



Thomas S. Philipa v, Isaao Sampeoii. 



The plaintiff produced and read to the jury a paper 
executed by Pettyjohn, of whixsh the following is a copy : 

" On or before the first day of January, 1849, I do 

promise to deliver to Col. Isaac Sampson, the place 

where I now live, whieh I have had possession of for 

the last three years. This 18th November, 1848. Up 

to that tinie under him. 

JOHN F. PETTYJOHN." 

The Court, among other things, said to the jury, 
that "if Pettyjohn went on the land by virtue of a 
renting from Sampson, and continued to rent from him 
until the end of the year 1848, and Sampson had no 
knowledge that he had been renting of Couner* s agent, 
and be then moved out to let in defendant, in that 
ervent plaintiff ought to recover in this action. It would 
be such collusion as would place defendant in an atti- 
tude that he could not resist plaintiff's claim.'* 

This case is very imperfectly presented in the proof, 
yet enough appears to show that the judgment is 
against the law and evidence; and it would seem, from 
what we see of the title, equally against the right and 
justice of the case. 

The title of Conner dates back upwards of sixty 
years, and the proof establishes an dctual possession 
under it — though not of the exact spot in controversy — 
for more than thirty years ; while the conveyance to 
Sampson, which is prima facie fraudulent and invalid, 
goes back only to 1838, under which there has been no 
possession, except for the short period before stated, and 
that by an apparently wrongful intrusion upon the prior 
existing possession of Conner. 



APRIL TERM, 1859. 488 

Thomas S. Philips v. Isaac Sampson. 

This aspect of the case demands that the plaintiff's 
case should be clearly made out, to support the recovery 
in his favor. 

It is true, as a general proposition, that the title 
cannot be inquired into in this form of action. The 
gist of the action is, the alleged wrongful entry or de- 
tainer. That is the issue properly involved, and not 
the state of the title, or which of two conflicting titles 
is the valid or better title. Yet it is admissible, in this 
action, to look to the title for some purposes; as ta 
define boundaries, or in view of the question of rents or 
damages to be recovered in an action brought by a 
mere intruder against the rightful owner of the land: 
So, where the claimant, by fraud, induced another to 
take a lease, or to enter under him, upon a false rep* 
resentation as to his title, and, consequently, the con* 
tract is vitiated by fraud. Shultz v. Elliottj 11 Hum., 
183, 186. In such cases, and others that might be 
stated, the title may be looked to in the determination 
of the question, whether the case made out, constitutea 
in law, a wrongful entry or detainer. 

The case before us, however, turns rather upon the 

facts for the present. The fact is distinctly proved by 

Miller, that from the first of the year 1847 — a period 

of more than three years before the commencement of 

this suit — the possession of the premises was held for 

Conner ; and, in opposition to this proof, there is no 

admissible evidence in the record. The paper produced 

by Sampson, and allowed to go to the jury, executed 

by Pettyjohn, was not admissible evidence against Con. 

ner or his tenant. The paper is discredited upon its 

face. It has the appearance very much of having beea 
28 



484 JACKSON : 



Thomas S. Philips v. Isaac Sampson, 



manufactured for the purposes of this suit. It purports 
to be a mere declaration made by Pettyjohn when 
quitting the premises, or, probably, after his removal, 
that he had held possession for the three preceding 
years under Sampson, and promising to surrender pos- 
sessipn to him on the first of January, 1849. . If this 
paper were to be supposed genuine, still Conner, or hia 
agQnt, had no connection with it — as to him, it is tbo 
ex'parte hearsay declaration of Pettyjohn, and ought 
jfiot to have been received. Except this paper, there is 
.not the color of evidence in the record that Pettyjohn 
professed to hold under Sampson for the years 1847 
and 1848: And, therefore, upon this paper alone, the 
hypothesis of the Judge, in that. portion of the charge 
above quoted, must have been based, as there is nothing 
else in the record to which it can be referred. The 
legal proposition of the judge, if admitted in the ab- 
stract to be correct, was calculated to mislead the jury. 
The objection is, that it impliedly recognizes the facts 
stated in said paper as legal evidence for the consider- 
.Ation of the jury. 

Pettyjohn is an admissible witness, and ought to have 
been called, though his credibility is, perhaps^ irajpaired 
by the statement of the witness Philips, and very seri- 
ously damaged by the execution of the paper above 
referred to. ... 

If the. possession was held for Conner for three years 

before the commencement of this suit, the action must 

fail. There is no legal evidence in the record of a 

.cpUusive attornment by Pettyjohn to Conner's agent or 

^tenant. But if the fact were even so, it would avail 



APRIL TERM, 1859. 435 



Thomas Ford v. J. Qricshaber. 



the plaintiff in the action nothing if he had knowledge 
of it and acquiesced. 

Without going into other questions for the present, 
the judgment must be reversed, for the reasons before 
stated. 



Thomas Ford v. J. Grieshabbr. 

DXPOSITIONS. Effect of release after deposition taken. Witness. If the 
deposition of a witness is taken, who is incompetent at the time his 
testimony is given, the subsequent release of the interest, on the trial, 
will not operate to remove the objection existing at the time the" depo- 
sition is taken. The witness must be competent at the time his testi- 
mony is given. 



FROM MEMPHIS. 



Verdict and judgment for the plaintiff, at the Novem- 
ber Term, 1858, Caruthers, J., presiding. The defend- 
ant appealed. 

WiCKBRSHAM & Beecher and Sullivan, for the plain- 
tiff in error. 

Small & Foute, for the defendant in error. 

McKiNNEY, J., delivered the opinion of the Court. 

The error assigned in this case, is the refusal of the 
Court to reject the deposition of the witness Wheatley. 



486 JAOESON : 



Thomas Ford v. J. Grieshaber. 



At the time the deposition was taken in the case, 
Wheatlej stood bound as secarity for the prosecution of 
the suit, and the deposition was taken by the plaintiff, 
for whom he was surety. 

When offered on the trial, the objection was urged, 
that the deposition was incompetent evidence on the 
ground of interest in the witness. Thereupon the plaintiff 
was allowed to release the deponent, Wheatley, by sub- 
stituting other security; aud this being done, the depo- 
sition was again offered, and admitted to go to the jury, 
though still objected to by the defendant. 

This was erroneous. The objection to the deposition 
was, that it was the statement of a person incompetent, 
by law, to give evidence in the suit at the time it was 
made. The subsequent release of the interest, on the 
trial, could not operate to remove the objection existing 
at the time the deposition was taken. The deposition 
remained as objectionable after the release as before. 
It was still, notwithstanding the release, the statement 
of one disqualified to give evidence by reason of interest. 

Judgment reversed. 



APRIL TERM, 1869. 437 



James H. Gibbs v. W. R. Ross, Adm'r, &c. 



Jambs H. Gibbs v. W. R. Ross, Abm'b, &;o. 



S^LS OF Real Estats. Rent When it passes by the sale. The sale of 
land passes the right to the rents that suhEequently become due as in- 
cident to the reversion, but not the rents then in arrear. Rent is not 
due, where the contract for renting is by the year, until the end of 
the year, and the rent is not in arrear until due. Rent, therefore, not 
due at the time of the sale, passes with the reversion, unless there is a 
stipulation to the contrary, in the contract. 



FROM WBAELEY. 



Verdict and judgment for the plaintiff, at the Octo- 
1)er Term, 1858. Fitzgbralb, J., presiding. The de- 
fendant appealed. 

Roobrs and Somers, for the plaintiff in error. 

The charge of the Court is manifestly erroneous in 
more than one particular. It is nearly all wrong. 

An estate for years is a contract for the possession 
of land for some determinate period, and the lessee is 
tenant for years, although the lease be for less than a 
year. 2 Bl.. C, 99. 

A reversion is an estate left in the grantor, after a 
particular estate, either for life or years, is granted by 
bim. 2 Bl. C, 175; 4 Kent C, 853. 

Then Gibbs was tenant for years of the land, and 
the intestate, Parnetta Thompson and her brothers and 
aisters, were reversioners. 



438 JACKSON : 



James H. Gibbs v. W. K. Ross, Adin>, &c. 



Rent is one of the incidents to a reversion, and 
passes by a general grant of the same to the grantee. 
It may be reserved by special words. 2 Bl. C, 176^ 
margin^ 4 Kent C, 356. Rent not due is an incorpo- 
real hereditament, and goes to the heir of the landlord 
in case of his death. 3 K. C, 464 ; 1 Hilliard's Abridge- 
ment, 155. 

But in this case the rent must necessarily have passed 
to Gibbs when he purchased the land and became the 
owner of the reversion, from the way in which it was 
to be paid. Gibbs was tenant for years, and was to 
pay the rent in improvements upon the place rented, 
and before the expiration of the time within which he 
was allowed to make the improvements, he buys the re- 
version, and gets an absolute conveyance. Of course his 
particular estate was merged when he became owner of 
the reversion. And it was surely a matter of no inter- 
est to the intestate, Parnetta Thompson and her brothers 
and sisters, whether Gibbs improved the place after they 
had sold it to him. They had not the right to com- 
plain if he did not improve it; and it was no concern 
of theirs if he did. 

This case is nothing more nor less than a suit 
against Gibbs for an alleged failure to improve his own 
property. His purchase of the reversion could not have 
the effect to abrogate the contract for the rent of the 
place, so far as to change the terms relative to the way 
in which Gibbs had the right to pay the rent. He 
was not thereby deprived of his right to pay the rent 
in improvements, if bound to pay at all. And the proof 
is clear that he did make improvements worth as much 
or more than the rent of the place within the time for 



APRIL TERM, 1859. 439 



Jaraea H. Gibbs v. W. R. Ro^s, Adm'r, &c. 



which, according to the plaintiff's proof* he had rented 
it. This was a perfect compliance with the contract of 
rent, which the plaintiff below insists was made. 



Cardwell and Roulston, for the defendant in error, 
Caruthers, J., delivered the opinion of the Court. 

Parnctta Thompson, the intestate of Ross, rented a 
tract of land to Gibbs,' in March, 1855, for that and 
the year 1856. The rent of the first year was to be 
paid in improvements, as the weight of the evidence 
shows. Before the expiration of that year, viz : in Oc- 
tober or November, 1855, Gibbs became owner of the 
land by purchase from said Parnetta Thompson and her 
sisters by deed. There was no reservation of rent or 
any other stipulation in relation to it, but the sale was 
general, without reference in any way to the pending 
contract of renting. Some improvements were made by 
Gibbs, but mostly after the date of his purchase. 

This suit is instituted upon this state of facts to 
recover the rent of 1855. The charge to the jury 
was — 

** That the rent in the case did not pass as an in- 
cident to the reversion when defendant purchased the 
land ; that if the purchase had been made soon after, or 
in a few days after the contract for renting', then the 
rent would have passed as an incident ; but in this case 
the rent was nearly due when the purchase was made, 
and therefore did not pass.'* 



440 JACKSON : 



James H. Gibbs v. W. B. Roes, Adm'r, &c. 

We apprehend his Honor misconstrued the law in the 
distinction taken by him as to the importance given to 
the time of the year at which the reversion was pur- 
chased from the lessor. Kent says a sale ^'passes the 
right to the rents that subsequently become due as inci- 
dent to the reversion, but not the rents then in arrear/* 
4 Kent, 354. Rent is that which is to be paid for the 
use of the land, whether in money, labor, or other 
thing agreed upon. , It is not due until the year is out, 
where the renting is by the year. The rent is not in 
'arrear" until after it is due. If not, it passes with 
the sale of the reversion without regard to the time of 
the year it was made, unless there had been some stip- 
ulation to the contrary. 

We think the finding was contrary to the law as 
charged on another question. The Court charged that if 
the contract was that the rent of 1855 was to be paid 
in improvements, there could be no recovery in this ac- 
tion. That is so clearly established that it may be said 
there is no proof to the contrary, and the verdict should 
have been for the defendant on that ground. The sup- 
posed promises of the defendant to pay something, after 
the year had passed, were not such as to bind him, if 
any were made. What was said on that subject was in 
view of a compromise, and if not, was void for want 
of consideration. The recovery was small — only 819 — 
but the law should be correctly administered without 
regard to amounts. 

Judgment reversed, and a new trial granted. 



APRIL TERM, 1869. 441 



Wm. H. Thompson v. Collins, Kellogg A Kirby. 



Wm. H. Thompson v. Collins, Ebllooq &; Kirbt. 



1. CoKTBACT. Illegal. Biffeei of. Ndte. A contract containing on Ita 
face an illegal stipulation cannot be enforced either at law or in equity. 
Therefore, no suit can be maintained in the Courts ot Tennessee on a 
note executed in this State stipulating on its face for usurious interest, 
if no other place of payment is designated where a greater rate o£ 
interest is allowed. 

2. Same. Same. Plea. If a note purnorts on its face to have been 
executed beyond the limits of the State, and the declaration avers that 
fact, and contains a stipulation for the payment of ten per cent if not 
paid at maturity, it is competent for the defendant to put in issue, by 
a proper plea, the fact as to whether it was executed in Tennessee, or 
not. If executed in Tennessee, it would be illegal on its face, and 
the plaintiff would be repelled from the Court. 



FROM HENRT. 



On motion of the plaintiff's counsel the plea that 
the note sued on was executed in Tennessee and not in 
Missouri, was stricken out, and judgment rendered at 
the September Term, 1858, for the plaintiffs, Fitzgerald, 
J., presiding. The defendant appealed. 

McAmpbell, for the plaintiff in error. 

Where a contract is made in one place to be exe- 
cuted in another, it is to be governed, as to usury, by 
the law of the place of performance, and not by the 
law of the place where it is made. So that if the 
transaction is bona fide^ and the law of the place of 
performance allows a higher rate of interest than that 



442 JACKSON : 



Wm. n. Thompson v. Collins, Kellogfg & Kirby. 



permitted at' the place of the contract, the parties may 
lawfully stipulate for the higher interest. Story's Con- 
flict of Laws, § 304-5. 

The law of the plaoe where the contract is made is 
to determine the rate of interest, where, the contract 
specifically gives interest, and this will be the case, 
though the loan be secured by the mortgage . of lands 
in another State, unless there be circumstances to <*how 
that the parties had in view the law of the latter 
plrce in respect to interest ; when that is the case, 
the rate of interest of the place of payment is to gov- 
ern. 2 Kent Com., 460, 461, 3d ed. 

The rule is that the law of the place where a* con- 
tract io made governs its construction, unless it be to 
be performed in a diflfercnt place — in which case the 
law of the place of performance governs. If, therefore, 
a contract stipulate for a rate of interest which is ille- 
gal at the place where it is made, it will be void for 
usury, unless its terms contemplate the performance there- 
of at a different place, where the rate of interest se- 
cured is legal. Story on Contracts, § 599, 2d ed., 5-7. 
Where a contract is made in one place, to be exe- 
cuted in another, it is to be governed, as to usury, by 
the law of the place of performance, and not by tlie 
law of the place where it is made. 13 Peters, ^5^ 77, 
78. 

A contract to pay more than six per cent, per an- 
num is illegal, and a Court will not lend its aid t# 
enforce it. 6 Hum., 277. 

The note declared upon is illegal, and cannot be re- 
covered without the averment that it was executed in 
St. Louis, Mo, This is a material and necessary aver- 



APRIL TERM, 1859. 443 



Wm. H. Tbonipfton v. Collins, Kellogg & Kirby. 



ment to make it a legal contract. The plea denies the 
averment, and presents the issue upon which the validity 
pf the contract depends. 



DuNLAP k Porter, for the defendants in error. 

Caruthers, J,, delivered the opinion of the Court. 

This is an action of debt brought in tlio Circuit 
Court of Henry, upon a promissory note for $1,314.67, 
by the defendants against the plaintiff in error. The 
declaration alleges that the note was made in St. Louis, 
Missoui-i. The note is dated, " Saint Louis, May 13, 
1859,*' and due six months after date. It contains this 
stipulation on its face; "if not paid at maturity, with 
interest at ten per cent, per annum." There are two 
pleas in defence, 

1. That the note sued upon was not made in Saint 
Louis, Missouri, but in Paris, Tennessee. 

2. Payment, 

The plaintiffs took issue upon the last plea, but 
moved the Court to strike out the first. This motion 
was sustained, and verdict and judgment on the other 
for the plaintiffs below. 

The only question here is, whether there was error 
in the action of the Court in striking out the first plea. 
If it was a perfect defence to the action, if true : it waa 
a good plea, and issue should have been taken upon it. 

It is not controverted in the argument that by the 



444 JACKSON : 



Wm. H. Tbompflon v, Collins, Kellogg & Kirby. 

hkw of Missouri ten per cent, interest by contract is 
allowed, and may be reserved and taken. But in Ten- 
nessee, sach a contract is illegal and usarions; it is an 
indictable offence by oar law to take more than six per 
cent. A contract containing on its face this, or any 
other illegal stipulation, cannot be enforced in a court 
of law or equity. No court will give its active aid upon 
such a contract. Isler v. Brunson, 6 Hum., 278, ap- 
plies this universal principle to contracts stipulating for 
usurious interest on their face. Then it cannot be con- 
troverted if this note were made in Tennessee, and no 
other place of payment designated where a greater rate 
of interest is allowed, no suit could be maintained upon 
it in our courts. 

But it is averred in the declaration that it was made 
in Missouri, and must be governed by the law of that 
State, and consequently they have not only a right to 
sue upon it here, but to recover the ten per cent. That 
is certainly true if the fact be so, as the law of the 
place where the contract is made, unless some other 
place is fixed for its performance, must govern on this 
question. Story on Con. of L., § 304-5; 2 Kent Com., 
460, 461; 13 Peters, 65, 77, 78; 2 Parsons on Con., 
96. 

This being the law, why is it not material, in view 
of the question, not so much of usury, but to test the 
legality of the contract, to ascertain where it was made? 
If in Missouri, it could be enforced here as well as 
there, but if in Tennessee, it is illegal on its face, and 
the plaintiffs would be repelled from our courts. It is 
averred to have been executed in Missouri. May not 
that averment be met by plea, and an issue made up 



APRIL TERM, 1859. 445 

JohA Overtoa o. BeDJamin Pbelan. 

to try the fact? It is certainly an important fact. If 
the plea be found true the action is barred and de- 
feated« It is clearly, then, a good and effectual de- 
fence. Upon what principle, then, can it be rejected, 
and its benefit denied to the defendants? 

It is most likely that the plea is not true, and was 
only put in for delay. But this we cannot know. If 
that be the case, it will be easy for the plaintiffs to 
take issue upon it, and appeal to the proof. 

The conclusion is that the court erred in striking 
out the plea in question, and for this the judgment must 
be reversed, and the cause remanded for further pro- 
ceedings. 



John Ovbrton v. Benjamin Phblan. 

1. ContiUlCT. Iteeoupm^nt Damages. Act of 1S56, eA. 71, { 1. In 
a suit upon a contract, if the defendant has sustained damages by 
reason of the plaintiff's non-performance of his part of the agreement 
sued on, such defendant has the right to abate the plaintiff's r^ 
CO very by the amount of such damages, and have judgment over 
against him for any amount or balance for which he may be found 
liable. 

2. Sams. Same, Meamre of damages. The amount of damages to 
which the defendant is entitled, in abatement of the claim against 
him in such case, is the damages which he would be entitled to 
recover in a cross-action by him against the plaintiff for the non* 
performance of his part of the contract. 

3. WARBAimr. When implied. When goods are ordered and supplied, 
or maaufiMStared for a particular purpose, there is an implied tvarranty 
that they are reasonably fit aad proper for that purpose. And thia 
rule especially applies in a contest between the manufacturer and 
psrafaMfir of the avtioles. 



446 JACKSON : 



John Overton v. Benjamin Phelan. 



4. Evidence. Settlement, Receipt. The fact that the defendant.had 
puid, in part, for articles or work, and taken a receipt therefor, or 
taken receipts from the plaintiff and another person, before the same 
were found to be defective, docs not change the rule as to damages, or 
lessen the plaintiff's liability, or preclude the defendant from showing 
that the plaintiff is the person really liable to him. 



FROM MEMPHIS. 



This cause was tried at the November Term, 1858, 
before Judge Caruthers. The defendant appealed. 

B. M. EsTES and Cooper & WniTE, for the plaintiff 
in error. 

Yergbr & Farrington, for the defendant in error. 

Wright, J., delivered the opinion of the Court. 

This action ib^ brought to recover the value of work 
and labor performed and materials furnished by Phelan, 
a foundry-man, for Overton, in building certain houses 
in the city of Memphis. 

Upon the trial, the defendant offered to prove that 
the plaintiff furnished the iron-wor]k, including, fronts, 
&c., in the construction of certain buildings of defendant 
in Memphis; that the items in the account sued on in 
this action were a part of the iron-work so furnished; 
that all the work which plaintiff had performed, and the 
materials which he had furnished for defendant, were 
to these buildings -and under the same contract; and that 
the said iron-work was so unskilfully manufactured and 
put in said buildings by the said plaintiff and his agents, 



APRIL TERM, 1859. 447 



John Overton v. Benjamin Fhelan. 



that before all of said work was done, and after said 
buildings were partially erected, the said iron fronts, 
supporting the brick-work, gave way and fell by reason of 
the imperfect and unskilful manner in which the plaintiff 
had manufactured and erected said iron- work. And that, 
after giving plaintiff an opportunity to repair the same, 
defendant was compelled to pay out J2,600 to have the 
same repaired;, and that said iron-work and materials, so 
done and furnished by the plaintiff, were unsuited to the 
purposes for which they were sold and used. But the 
Circuit Court refused to allow this evidence to go to 
the jury. 

In this we think he erred. It is well settled, upon 
common law principles, tliat where the defendant has 
sustained damages by reason of the plaintiff's non-per- 
formance of his part bf the agreement sued on, such 
defendant has the right to abate the plaintiff's verdict 
and recovery by the amount of such damages. Porter 
v. WoodSy Stacker ^ Co.y 3 Hum., 56; Whitaker v. 
Pullen^ 3 Ilum., 466. In these cases it was held that 
the amount of damages to which the defendant is enti- 
tled, in abatement of the claim against him in such casey 
will be the damages which . be would . be . entitled to re- 
cover in a cross-action* by him against the plaintiff for 
the non-performance of his portion of the agreement. 

Not only so, but now by force of the Act of 1856, 
ch. 71, § 1, the defendant may not only avail himself 
of these damages* to abate or extinguish the plaintiff's 
demand against him, but will also be entitled to judg- 
ment and execution against the plaintiff for any amount 
or balance for which he may be found liable. 

It is settled that where goods are ordered and sup-^ 



448 JACKSON : 



John Overton v. Benjamin Phelfin. 



plied, or manufactured for a particular purpose, there is 
an implied warranty that they are reasonably fit and 
proper for that purpose. This rule especially applies in 
a contract between the manufacturer and purchaser of 
the article. Donehon v. Young ^ Clements^ Meigs' 
Rep., 155; Ghitty on Contracts, 450; 5 Bing., 588; 
Story on Contracts, § 835. 

We think, then, the proof should have been received. 

We are not able to perceive from this record that 
any part of the defective work was performed by Isaac 
Phelan. 

If it shall turn out that he did any portion of it 
upon a contract unconnected with the plaintiff, of course 
to that extent the plaintiff will not be held answerable. 

The fact that Overton had settled with the plaintiff for 
a good part of the work and taken his receipts, before 
it gave way and fell, does not change the rule or lessen 
the plaintiff's liability. 10 Yer., 160; 1 Greenl. Ev., § 
305. Nor does the fact that these receipts were signed 
or executed by both the plaintiff and Isaac Phelan 
preclude the defendant from showing that the work and 
materials referred to were really performed and furnished 
by the plaintiff. 1 Greenl. £v., § 805. 

The judgment will be reverted, and a new trial 
granted. 



APBIL TERM, 1859. 449 



Richard Nored v. Robert T. Adams. 



Richard Norbd v. Robert T. Adamb. 

XviDKKGE. Statement of slave. When admissible. The principle admit* 
ting as evidence the representations of a slave made to a physician, or 
other person, is confined to statements made as to the nature, symp- 
toms, effects, and duration of the malady under which he is laboring. 
A representation to a person, by the slave, without any question being 
asked, to the effect that she had become diseased after the plaintiff pur- 
chased her, and in consequence of i]l-treatment, is not admissible. 



FROM HENRT. 



The plaintiff failed in his Buit, which was tried at 
the January Term, 1869, before Judge Fitzobrald. He 
appealed. 

A. McAmpbbll, and J. J. Lamb, for the plaintiff. 

B. F. Lamb, Fitzgerald, and Bkown, for the de- 
fendant. 

McKiNNEY, J., delivered the opinion of the Court* 

This was an action of covenant for breach of war* 
ranty of the soundness of a female slave, named Minerva^ 
eonvejed by the defendant to the plaintiff* on the 28th 
of March, 1857. Verdict and judgment for the defendant. 

The proof is conflicting; and it being admitted upon 

the record that the charge of the Court (which is not 

set out in the bill of exceptions) was unexceptionable, 

we should not feel at liberty, under the rule of this 
29 



460 JACKSON : 



Biefaftrd Voted v, Robert T. Adttna. 



Court, to disturb the verdict, but for the statement of 
the witness Pryor, which, though objected to by the 
^plaintiff's oooaeel, was admitted to go to the jury as 
•competent evidence. 

The witness stated, that in October, 1858, after the 
institution and during the pendency of this suit, he had 
a conversaticn with the girl Minerva in the street, in 
the town of Paris, in substance as follows: ''The girl 
wanted hhn to buy her; he told her that she was dis- 
eased : She replied that she was sound when she went 
to plaintiff's; that she had become diseased since she 
went there, from carrying wood and water, and meal 
and flour from the mill; that plaintiff's was a hard 
^ace to get along at; that she had been whipped by 
plaintiff, and bore the marks upon her back; and that 
she would go anywhere in preference to living with 
-plaintiff." 

This entire statement of the witness ought to have 

been rejected. Its admission was not sanctioned by any 

determination of this Court of which we are aware — cer- 

'tain'y not by either of the cases referred to — Yeatman 

V. Hart, 6 Hum., 375; Jones v. White, 11 Hum., 268. 

It does not fall within the principle that the ropresen- 

'tations of a sick person, made to a physician, or other 

person, of the nature, symptoms, effects, and duration of 

the malady under which he is laboring at the time are 

admissible. Such representations are received upon the 

principle that they aid in forming a correct judgment 

'Of the character of the disease, and are part of the re$ 

£e$ta. In the present instance, no question was asked 

or representation made as to the character of the alleged 

<diRease-^its nature, symptoms, or effects. The slave 



APRIL TERM, 1859. 45V 

William Park v. Qeorge W. Cheek. 

•mmply stated the fact that she had become diseased after 
the sale to plaintiff, and in consequence of ilUtreatment. 

It is easy to imagine what influence such a state- 
ment, recognized by the Court as legitimate evidence, 
would have on the minds of jurors in a case at all 
doubtful. As the case must be again submitted to a 
jury, wc forbear to comment upon the proper force of 
Ibe testimony. 

Judgmeat reversed- 



William Park v. Gsorgb W. Cheek. 



1. Dbibd. Oons'uUraiion. Cbvenant of neixin. Tho defendant executed 
a deed to the plaintiff in 1851, for a lot of ground in the city of Mom- 
phis, for the consideration of tour thousand dollars. The deed con- 
tained, simply, a covenant of general warranty in the usuul form. 
About eighteen months after the execution of said deed, the defendant 
executed to the plaintiff another deed for the same lot, without any- 
new consideration. This deed was made to bear the same date and dr 
recite the same con8iderati.>n of the first deed, and in no respect dif- 
fered from ib, except that it contained a covenan' of seizin, and thai 
the lot was free from all incumbranccH. tleUi, that, if in the absenot 
^ of fraud the defendant vtiluntarilv and understundingly executed the 
second deed with the intent and for the purpose of carrying out tha 
original agreement between tbe parties at the time of making thecon-> 
tract, and to supply the omission in the first deed : or, it the original 
contract were tUent as to the oovenants incorporated in the secona 
deed, and the vendor, at the instance of the vendee, and with knowl* 
«dge that the first deed waa defective, ia respect to tbe proper an# 
necessary covenants — fairly and voluntarily executed the latter con- 
veyance us a farther and better assurance of title to the purchaser, in- 
teadiiig that the fiyrmer deed should be abandoned and the latter sub- 
atituted in its stead, the second deed would be valid and binding with- 
Otit any new or additional consideration 



462 JACKSON : 



IVilliam Park •. George W. Cheek. 



2. Same. 'Same, EsioppeL In such a case the vendee would he estopped 
to question his liahility on the coyen&Dts of the second deed, on tht 
score of want of consideration. 



FROM MEMPHIS. 



There were verdict and judgmeilt for the defendant, 
at the November Term, 1858, Garuthers, J., presiding. 
The plaintiff appealed. 

TuRNAGB & Massey, for the plaintiff. 

Vance & Anderson, and Sullivan, for the defendant. 

McEiNNEY, J., delivered the opinion of the Court. 

This action was brought for an alleged breach of a 
covenant of seizin. 

In December, 1851, the defendant. Cheek, conveyed 
to the plaintiff a lot of ground in the city of Mem- 
phis. The deed purports that the consideration of four 
thousand dollars was paid for said lot by the plaintiff 
to the defendant. This deed contains simply a covenant 
•f general warranty in the usual form. The plaintiff 
was let into possession of the lot — on which a mill had 
been erected — and still remains in the undisturbed pos- 
session of the same. 

About eighteen jaonths after the execution of the 
before mentioned deed, the defendant executed to plain- 
tiff another deed for the same lot, upon the representa- 
tion of plaintiff, as is stated in the proof, that the first 
deed was *^ formally defective*" The last deed was noade 



APRIL TERM, 1859. 453 

William Park v. George W. Cheek. 

upon no new consideration. It was made to bear the 
same date, and to recite the same consideration, of the 
"first deed; and in no respect differed from it, except 
that it contained a covenant of seizin, and that the 
lot was free from all incnmbrances, and that Cheek had 
a lawfal right to sell and convey the same. 

Upon this latter deed the present action is based. 
The breaches assigned, negative the several covenants 
above mentioned, especially the covenant «f seizin. 

The proof shows that Cheek derived title to the lot 
hj conveyance from one Varnum Ozmenrt, bearing date 
the 6th day of November, 1849. And it is further 
'«hown, that prior to the time of said conveyance, name- 
ly, on the 11th of May, 1847, Ozmcnt had divested 
liimself of the legal title to said lot, by an ante-nuptiat 
marriage settlement, under which the title was vested in 
one James A. Banks, in whom it still remains. 

It is proved that the consideration of the convey- 
ahce from Cheek to Park, was not four thousand dol- 
lars in money, as the deed imports ; but that the true 
^consideration was a steamboat, called the '' St. Cloud," 
given in even exchange by the latter to the former for 
«aid lot. 

The jury were instructed by the Court that the lat^ 
ter deed, containing new and additional covenants, if 
made without any new consideration to support it, would, 
for that reason, be inoperative and void. 

In this instruction, it is said, there is error. 

In the proof as set forth in the bill of exceptions, 
there is nd intimation of fraud in the procurement of 
the second deed. It is. not made to appear whether the 
additional covenants in the latter deed were incorporated 



454 JACKSON ; 



William Park v. George W. Cheek. 



therein in fnlfillment of the original agreement, and U^ 
Bupplj an unintentional omission in the first deed ; 4^ 
▼hether they were inserted upon some new agr^emeat 
between the parties, subsequent to the execution of ihi& 
first deed; or whether, without any new contract, the 
execution of the second deed was an act merely volun- 
tary and superrogatory on the part of Cheek. 

If, in the absence of fraud, Cheek, roluntarily aad 
understandingly, executed the second deed, with the in- 
tent, and for the purpose, of carrying out the original 
agreement between the parties at the time of making 
the contract, and to supply the omission in the first 
deed; or, if the original contract were $ilent as is tb» 
eorenants incorporated in the second deed, and the Ten- 
dor, at the instance of the vendee, and with knowled^p 
that the first deed wab defeciive, in reepect to th» 
proper and necessary covenants, fairly and voluntarily 
executed the latter conveyance, as a farther and better 
assurance of title to the purchaser, intending that th» 
former deed should be abandoned, and the latter substi- 
tuted in its stead; then, upon either hypothesis, i^ 
seems to us, the second deed would be valid and bind- 
ing on Cheek. As regards the consideration, the lattar 
conveyance would, in either view, be referred to the 
original consideration of the contraei, and be sufficiently 
supported by it. No new or additional considerativp 
would be requisite to give effect to the deed. The ven- 
dor, we think, would be estopped to question his lia- 
bility on the covenants of the deed, on the score of 
want of consideration. 

How it would be, if it were shown that the execu- 
tion of the second deed wfis superinduced, by fraud, of 



^ 



APRIL TERM, 1859. 461 



Iieonard Owens «. the SUte. 



•rttioe, ofi the part of the vendee, or in other suppos- 
able aspects of the case, we need not now iiu|airey as 
no such questions arise upon this record. 

The qnestion, as to the proper measure of damages 
in the present case, cannot be regarded as properly be- 
fore us. Upon that subject, we refer to Kincaid y. 
Brittain, 6 Sneed, 119, 123; Sedgwick on Damages, 
176, eL 9eq. 

The judgment mu9t be reversed for error in the in- 
atmotion given to the jury. The case will be remanded 
for a new trial. 



Leonard Owens v. The State. 



1. Criminal Law. Oaming. Wiineas examined before the Qrand Jury 
Act of 1824, eh. 6. Code, } 6089. By the act of 1824, ch. 6, inoorpo- 
rated in the Code, { 6089, any person who is summoned and examine^ 
as a witness before the grand jury, as provided in said act, 18 not lia- 
ble or bound to answer to any criminal proceedings for any offence 
about which he may have bean so examined as a witness ; but this statute 
was intended to relieve such persons, only, in cases, although guilty 
with others, where they had informed against them fox the Identical 
offence, and not in all cases of like offences. 

"1, Baue. Same, Same, Plea in abatement If a party wish to avail 
himself of the benefit of the protection of the act of 1824, ch. 6, by 
a- plea in abatement, he mu^t aver, specifically, in his pleu, that he 
was examined before the Jury as to the particular offence charged 



456 JACKSON: 



Leonard Owen& v. The State. 



against him in the indictment. An averment that he was summoned 
and went before the grand jury to testify as to unlawful gaming, &o., 
18 not sufficient. 



FBOM HARDEMAN. 



This cause was tried before Jadge Humphrets, at 
the October Term, 1858. The defendant appealed. 

Wood & Smith, for the plaintiff in error. 

Sneed, Attorney General, for the State. 

Gabuthers, J., delivered the opinion of the Ooart 

The plaintiff in error was presented, for gaming, in 
the Circuit Court of Hardeman. He filed a plea in 
abatement, setting up the protection afforded to all per- 
sons summoned before the grand jury as informers in 
relation to that offence. The plea is, that he was 
subpoenaed and went before the grand jury to testify as 
to unlawful gaming, &c., and that " he did, before said 
grand jury, testify in relation to said offence * * * 
all the facts within his knowledge or recollection." 

The act of 1824, ch. 5, Car. sec. 359, after con- 
ferring upon the grand jury the power to send for wit- 
nesses, &c., provides for their protection, thus: '^Nor 
shall any such witness be liable or bound to answer to 
any criminal proceedings for any offence about which he 
may have been examined as a witness, by virtue of this 
act." Code, 5089. 



APRIL TERM, 1859. 457 

Leonard Owens v. The Staly. 

The demurrer to the plea was sustained by the 
Court, and the defendant convicted on the general issue. 

This was certainly right, as the plea does not aver 
that he was examined before the jury as to the partic- 
ular offence charged against him in this indictment. 

The statute was only intended to relieve him, though 
guilty, with others, in cases where he had informed 

 

against them for the identical offence. The object was 
to save him from self crimination so far as he was 
used as a witness to bring others to justice, but no 
farther. It was not intended that the mere fact of sum- 
moning a man before the jury, under the act, should 
operate as a pardon of all his crimes of the same na- 
ture. To have this effect, the offence charged against 
him must be the same about which he actually testified 
before the jury against others. If this were not so, 
evasion or perjury^ in behalf of others, might be made 
to screen him from liability. 

The judgment will be affirmed. 



4S6 JACKSON : 



)mmc (a SUve) «. Tke State. 



Isaac (a Slave) v. Thb State. 



Crim IKAL Law. Jur:>r. Power of the (hurt when juror refuses to he 
sworn. The Court has the power, in a criminal case, before the jurors 
are sworn, to discharge one of the number upon his persistent refusal 
to take the oath ; but after the juror has been actually diicharged for 
this cause, the court has no power to recall him and force him upon 
the prisoner without his consent. 



FROM MEMPHIS. 



The prisoner was coDvicted at the October Teraif 
1858, MoKuBRNON, J., presiding. He appealed* 

Brown, King, and Barnett, for the plaintiff in error. 

Sneeb, Attoniej Oeneral, for the State. 

McKinnet, J., delivered the opinion of the Court. 

The prisoner was convicted in the Criminal Court of 
Memphis, of the murder of a white man, named Oideon 
Bauden, and sentenced to be hung. From this judg- 
ment an appeal in error was prosecuted to this Cpurt. 

Of the several errors assigned, the only one thought 
necessary to be considered for the present, arises out of 
the action of the Court in regard to one of the jurors. 

After the full number of twelve jurors had been 
regularly tried and elected, and were about to be sworn, 
W. W. Ritchie, one of the number, refused, repeatedly, 



APRIL TSRM, 1859. 4fiO 

l4aftc (a S)«ve) «. The State. 

to take the usual oatb, on the ground, a8 was pretended, 
^^ of conscientious scruples in regard to capital punish- 
ment." And, thereupon, the other eleven jurors were 
sworn ; and Ritchie was ordered bj the Court to be iift- 
prisoned one month, and was accordingly committed to 
jail forthwith. 

There is some confusion and apparent contradiction 
in the statements, in the bill of exceptions, as to what 
followed, but from the whole record, the probable truth 
of the case is, that after ordering the juror, Ritchie, to 
jail, the Court further ordered that he be '^ discharged 
as a juror," and directed the sheriff to summon a panel 
of nineteen jurors by next morning. On the next mor- 
.ning, before the return of said panel of jurors, and after 
fifteen hours' imprisonment, the sheriff announced thai 
Ritchie was then willing to be sworn as a juror. Upon 
this information Ritchie was brought into Court, and the 
Court directed that he be sworn as a juror in the case. 
The Attorney General thereupon challenged him for cause, 
but the Court overruled the* challenge; to which exception 
was taken on behalf of the State. The Court again 
ordered him to be sworn as a juror, to which the pris- 
oner then objected; but the objection was overruled, 
and said Ritchie was then sworn, and served as a juror 
on the trial of the prisoner. 

This was an exercise of power on the part of the 
Court, which, in our opinion, cannot be sanctioned. 

That the Court possessed the discretionary power^ 
before the jurors were sworn, to discharge one of the 
number upon his persistent refusal to take the oath, 
• admits, perhaps, of but little doubt. The question, how- 
ever, is not whether the discharge of Ritchie was proper. 



116 



460 JACKSON : 



The State v. Crawford, McNeil) & Go. 



under the circumstances, or not. Be this as it may, we 
think it clear that, after having been actually discharged, 
the Court had no power to recall him and force him 
opon the prisoner, or even upon the State. Without 
the consent of the prisoner, and likewise, as we incline 
to think, of the Attorney General, he could not have 
been reinstated as a competent juror in the case. The 
effect of the discharge of Ritchie necessarily was, so far 
as respects the power of the Court over him, to place 
him exactly in the stme situation as if he never had 
been elected as a juror in the case. In principle, the 
Court might as well have ordered a bystander, never 
put to the prisoner, to be sworn as a juror. 

On this ground, without noticing other objections, the 
judgment must be reversed, and a new trial granted. 



jheleol The State y. Crawford, McNeill &; Co. 



OONSTITUTIONAL Law. Otxic, { 545. Tax on articles mannfaeiured of 
the produce of this Stale, Merchants, Section 546 of the Code, 
which provides that " salt, sugar, coffee, spun cotton, garden •6ed« 
iron, and articles manufactured in this State, may be sold without 
paying a tax, but these articles are not exempt in the hands of any 
person who sets himself up as a merchant or grocer," is not in viola- 
tion of article 2, { 80, of the Constitution. This section not only 
refrains from taxing the articles mentioned, but saves the producer or 
manufacturer from any tax for the privilege of selling them. Bat 
when they become articles of merchandise and profit in the hands of a 
merchant by occupation, they direct that reference shall be had to 



1 



APRIL TERM, 1859. 461 

The SUto v. Crawford, McNeill & Co. 

them as well as foreign articles, in estimating the amount to be paid 
for exercising the occupation or privilege of a merchant. It is only a 
diiTerent mode of taxing the privilege, and not a tax upon the articles. 



FROM HENRY. 



This was an agreed case, submitted to the Court at 
the January Term, 1859, Fitzgerald, J., presiding. 
Judgment was rendered for the defendants. The State 
appealed. 

Snbkd, Attorney General, and B. F. Lamb, for the 
State. 

A. McAmpbell, for the defendants. 

Caruthbrs, J.y delivered the opinion of the Court. 

This agreed case, between the clerk of the County 
Court of Henry, on the part of the State, azkl the 
defendants, who are merchants in that county, raises the 
question of the liability of a merchant to pay a tax 
for selling things manufactured in this State. 

The statute is, that ^^salt, sugar, coffee, spun cotton, 
garden seeds, iron, and articles manufactured in thi» 
State, may b^ sold without paying a tax; but these 
articles are not exempt in the hands of any person who 
»et8 himself up as a merchant or grocer." Code, § 546. 

The Constitution provides that ''no article manufao- 
tiired of the produce of this State shall be taxed, 
otherwise than to pay inspection fees." Article 2, § 80. 



«2 JACKSON : 



The State v. Crawford, McNeill & Oo. 



Bat in section 28 of the same article, it is provided 
that 'Hhe Legislature shall have power to tax merehants^ 
pedlars, and privileges, in ^euch manner as thej may 
from time to time direct/* 

In* the exercise of this power, the Legislature at one 
time taxed the merchant a specific sum for the privi- 
lege of selling merchandise, without regard to the extent 
of his business; but afterwards the more just and equi- 
table mode was adopted, to graduate the amount of the 
tax by the quantity of goods sold. And the question 
made in this case is, whether, in this estimate of sales 
made by them, iron, castings, spun cotton, and other 
.things manufactured in this State, must be included, antl 
in that way enhance the amount of the tax to be paid 
•by them. This involves the construction of the sections 
of the Constitution above cited. 

The power to tax merchants in such manner as they 
may think proper, is expressly given in section 2^; and 
they have "directed" that the "manner" shall be to 
eettle the amount to be paid by the extent of their 
business, or the quantity of goods, wares, anfl merchan- 
dise sold in each year, including things made or pro- 
duced in this St4ite. Is this prohibited by section 80? 
We think not. This is not a tax upon the article, but 
tho occupation of the merchant. There would have been 
no question if the old mode of taxing the occupation of 
the merchant a gross sum had been continued. But 
what difference can it make? The change is only a^ 
to the "manner" of settling the amount to be paid fof 
Utt privilege. It is not the article which is taxed, 
blii the occupation or privilege. 

The Legislature may tax a man's land, dlaves, ptalet 



APRIL TERM, 1859. 4«« 



The State ». Crawford, McNeill & Co. 



jewelry, stocks, and almost every other kind of property, 
but not his flour, tobacco, cotton, iron, &c., '^ otherwise 
than to pay inspection fees,'* when there are laws re- 
quiring or allowing inspection of such products, as was 
once, if not now, the case, in this State, as to tobacco, 
flour, and other articles to be exported. This exemption 
was intended to encourage domestic manufactures, and 
stimulate production. It is a wise prohibition. The 
Legislature, ia this case, have not attempted to violate 
or evade it. They have not only refrained from taxing 
duch articles, but saved the producer or manufacturer 
from /iny tax for the privilege of selling them. But 
when the reason of that protection fails, and they be- 
come articles of jaaerchandise and profit in the hands of 
a merchant by occupation, chey direct that reference 
shall be had to them as well as foreign articles in esti- 
mating the amount to be paid for exercising the occupation 
or privilege of a merchant. There would be a great ab- 
, surdity in any other construction. If a merchant got 
bis iron or cotton yarns on one side of the State line, 
thry would be taken into the account, but if in sight, 
on his own side, they would not be, according to the 
doctrine contended fur. 

But it is enough to say that we think the Legisla- 
ture were nut prohibited by the Constitution from pro- 
viding that, in ascertaining the amount of tax to be 
paid by ^^7Herchant$^' for the exercise of their privilege, 
the articles in quest on should be included; that not 
being a tax upon the article in the sense of the Consti- 
tution, (sec. 30,) but upon the occupation, under seo. 28. 

The judgment will be reversed, and entered here 
aecordiiig to this opinion on the agreed case. 



464 JACKSON : 



Francis Frazer et al. v. Newton Ford, Adm'r, &c., et al. 



Franois Frazbb et al. v. Newton Ford, Adm'r, &;c., et al, 

1. Salk of Kbal Estate. Frauds, Statute of. By whom agreement to 
he eigned. To make a contract for the sale of real estate valid, it must 
be in writing and signed by all the owners^ by themselyes or by some 
person lawfully authorized to sign their namesv 

2. Same. Same, Same, Must be binding upon all. The language in 
the statute of frauds, **the party to be charged therewith,'' means the 
persons who sell the land. The filing of a bill by all the owners, in 
the absence of a memorandum or writing as required, with an express 
ratification of the contract and a tender of title,, will not remedy the 
defect and compel the purchaser to take the land. To make the con- 
tract obligatory it must be mutual. 



FROM MBMPUIS. 



Decree for the complainants at the November Term, 
1858, Oaruthkrs, J., presiding. The defendants ap- 
pealed. 

Brown & Frazbr, Wiokersham k Bbbghbr, and £« 
M. Tbrger, for the complainants. 

Williams & McKisick, and Watson, for the defend- 
ants. 

Caruthers, J., delivered the opinion of the Court. 

The bill was filed to enforce a specific execution of 
a contract for the sale of lots in Memphis, and the 
question is, whether the contract is binding under the 
statute of frauds, so as to be enforced bj a -aoiut of 



APRIL TERM, 1859. 465 

Francis Frazer et at. v. Newton Ford, Adm'r, &c., et aL 

equity. The Chancellor thought it was, and decreed a 
specific performance. This is the writing : 

''This agreement of sale entered into 21 May, 1857« 
between C. W. Frazer, for himself, and the heirs of 
John A. Frazer, deceased, of the one part, and Thomas 
Mull, of the other part, witnesscth, that said Frazer 
agrees to sell all the land now owned by himself and 
said heirs on Adams street, between Main and Second 
streets, south side of Adams, say 124 feet more or less, 
fronting on Adams street, and running back to an alley, 
say 148 feet; and said Mull agrees to buy the same 
and pay for it the sum of $250 per foot front; $6000 
of said sum to be paid on 1st Nov., 1857, the balance '* 
(of about $24,000) "in equal payments of one, twj 
and three years from that date, with interest. A lien 
to be retained on said property for the payments. 

Witness our hands and seals the day and date above 

written. C. W. FRAZER, [seal.] 

THOMAS MULL, [seal.] 
Test: £. L. Jones, 

W. H. Wynne." 

The statute of frauds of 1801, requires that "no 
action shall be brought, * *   upon any contract 
for the sale of lands, * * * * unless the prom- 
ise or agreement upon which such action shall be 
brought) or some memorandum or note thereof shall be 
in writing, and signed by the party to be charged there- 
witfiy or some other person by him thereunto lawfully 
authorized.*' 

This property belonged to C. W. Frazer and his 

brothers and sisters, as the children and heirs of John 
80 



466 JACKSON : 



Francis Frazer et cd. v. Newton Ford, Adm'r, &c., et cU. 



A. Frazer, deceased, by descent. To make the contract 
of sale good and ralid, it must have been signed by 
all the owners, by themselves, or some one lawfully au- 
thorized to sign their names for them, not by one of 
them alone. C. W. Frazer had no legal authority from 
the other owners at that time, and if he had, it was 
not executed, as he did not sign their names. The ar- 
gument is that, as the action is against Mull, and be 
signed it, that is a compliance with the statute, as^he 
is the party attempted '• to be charged therewiilu' This 
is not the meaning of the act — it means the persons 
who 9ell the land shall sign the writing,^ — the vendor, 
and not the vendee. The filing of the bill by all the 
vendors, with an express ratification of the contract 
therein, and tender of title, does not remedy the de- 
•feet, of failure to sign the writing, by the vendor, as 
is contended by counsel. That principle would make ihe 
contract binding on one party and not the other — on 
:the purchaser, and not the seller. Whereas, to make it 
obligatory, it must be mutual. 

The article leaves it entirely uncertain who are the 
.Tenders. They are the heirs of Jno. A. Frazer, de- 
ceased. But how many of them are there, and what 
are their names and condition? Are they adults, infants, 
' or femes covert? Then there is no title or right to a 
rtitle obtained in the contract. 

We will say nothing as to the sufficiency of the de- 
scription of the property, because the other point is de- 
cisive, and a further multiplication of cases on that sub- 
ject in our books, is not desirable, as it would tend to 
produce confusion, and by our own cases, to which ref- 
.erence has been made in argument, the rules by which 



APRIL TERM, 1859. 467 

,1 I _ I - ~ 

Memphis and Little Rock Railroad Company 0. Saml. P. Walker. 

contracts are to be tested, under the statute of frauds, 
are sufficiently explicit. 

The decree must be reversed, and the bill for spe- 
cific performance dismissed. 



Memphis and Littlb Rock Railroad CoMPiNT t;. Saml. 

P. Walker. 



1. SiCT'Orv. OkUgation to be discharged in bonds. An obligation for # 
money to be paid in the bonds of a railroad company ,J)y a given day, ^ /Z"^ 
may, if not complied with, be the subject, of set-off in a suit against 

the original holder of f^aid obligation, or his assignee, for money due 
said company. And this is so, whether the obligation fixes the value 
at which the bonds are to be received or not, the law having; cslub- 
lished a rule by which the value may be ascertained and rendered cer- 
tain. 

2. Damagxs. Measure of. Obligation for railroad bonds. If an ob- 
ligation is executed for a sum of money, to be paid in the bonds of a , 
railroad company, and said obligation is not complied with, the meaa-d> (/^«£. 
ure of damages in an action there<»n, or when offered as a set-off if 
the nominal value of the bonds, and not the value at which they 
might be rated in the market. 



FROM SHELBT. 



This cause was tried before Judge Humpjireys at the 
September Term, 1858. Under the charge of the Court 
the jury sustained the plea of set-off, .and the plaintiff 
appealed. 

EsTESy WiOKBRSHAH & BsBGHSRy for the plaintiff. 



468 JACKSON : 



Henjphis and Little Kock Railroad Company v. Saml. P. Walker. 

E. M. Yerger and W. T. Brown, for the defendant. 
McKiNNKY, J., delivered the opinion of the Court. 

This was an action of assumpsit upon a promissory 
note for $7,168.00, made by W. F. Barry, payable to 
the defendant, Saml. P. Walker, and by him indorsed 
to the plaintiff. 

Among other matters of defence, uras that of set-off. 
The evidence of set-off relied on by the defendant, was 
the following obligation, which had been transferred to, 
and was owned by defendant, prior to the institution of 
this suit: "Six months from date, or sooner if practi- 
cable, the Memphis and Little Rock Railroad Company 
promise to pay to the order of H. R. Austin, five 
thousand dollars, in the bonds of said company, at ^ar : 
of equal character with any bonds issued by said com- 
pany; to bear interest from the first day of January, 
1857 ; in part payment of the award made on the 26th 
day of November, 1856, by the arbitrators to whom was 
referred the matters in controversy between said compa- 
ny and the assignees of the contract for the construe- 
tion of said road." Then follows a stipulation to the 
effect, that said bonds are not to be of the class of 
bonds which entitled the holders thereof to take the landa 
of the company, at three dollars per acre, or at the 
appraised value,' in satisfaction 'of ^their bonds. 

The plaintiff objected to the admission of said obli- 
gation, as evidence in support of the plea of set-off, but 
the objection was overruled. After it had been read to 
the jury, the plaintiff proposed to prove the market 
value of the description of bt)iid8' ttieittibned in said ob* 



APRH. TERM, 1859. 469 



HiemphU and Little Bock Railroad Company v, Saml. P. Walker. 



ligatioDy and propounded a question to that effect to a 
witness on examination; bat objection being made to the 
evidence proposed, the court refused to allow the ques- 
tion to be answered. 

The court instructed the jury, in substance, that 
said, obligation was competent and sufficient evidence to 
fiupport the plea of set-off.; and that the failure of the 
company to issue and deliver the bohds, according to 
tjie terms of the obligation, entitled the defendant to 
claim the full amount of the five thousand dollars, 
with interest thereon from the first day of January, 
1857, as a set-off to the note sued on« The jury found 
accordingly. 

An earnest and ingenious argument is made for the 
plaintiff in error, to show that both of the propositions 
asserted in the instructions to the jury, are erroneous. 

The argument assumes, that the obligation for five 
thousand dollars in the bondfl of the company, is not 
the proper subject of set off, because an action of debt 
could not be maintained thereon, for the reason that the 
value of the bonds is uncertain, and must be fixed by 
^ jury on proof of their value in the market. In this 
reasoning we are unable to concur. If it were to be 
conceded that the value of the bonds is not the nooai- 
nal amount stated in the obligation, but their market 
value, still, upon the authority of Moore v. Weir ^ 
Smithy 3 Sneed, 46, this would be no objection to 
the set-off; the law having established a rule by which 
the value may be ascertained and rendered certain. 

But we dissent from the position, that the value of 
the bonds is uncertain. Upon the proper construction 
of the instrument, we think the plaintiff is precluded 



470 JACKSON : 



Hemphia and Little Rock Railroad Company v. Saml. P. Walker. 

from insisting that the bonds should be estimated as of 
less valae than that stated in the obligation. Bj the 
stipulation, the plaintiff — ^within a limited time — was bound 
to deliver, and the defendant to receive, five thousand 
dollars of the bonds of the company, not at the value 
at which they might be rated in the market, but " at 
2^'' In the negotiations between the parties, the bonds 
were treated as being of their nominal value — ^five thou- 
sand dollPTS. To the plaintiff they were equivalent to 
that value, because their delivery was to extinguish a 
fixed indebtedness of the cgmpany to that amount. And 
to the defendant they were, prima facicy of equal value, 
because they were to bear interest at the legal rate 
until paid. 

We think it clear, therefore, that in a cross-action 
against the company, founded on the obligation, for fail- 
ing to deliver the bonds, the proper measure of dama- 
ges would be their nominal value of five thousand dol- 
lars, with interest thereon ; and the same rule must pre- 
vail where the claim is set up by way of set-off. 

This conclusion is not in conflict with any recent de- 
terminsxtion of this Court of which we are aware. It 
results from the peculiar nature of the obligation in 
question, and is without an exact parallel in any of our 
own cases. 

There is no error in the record. 

Judgment affirmed. 



APRIL TERM, 1859. 471 



James H. Baker v. John B. Compton. 



Jam^'J II. Bakbr V, John B. Compton. 



Abatement PUa of. When proper, and what it must aver. WHt, 
Code, { 3828. A jmrty mav plead, in abatement of a Mummons, that 
it was served on him while in attendance as a witness upon the Circui 
Court ; but great strictness and accurncy is required in a plea of thift 
eliaracter; and to be good, it must set out the Court which he was 
attending, the Fuit in which hu was a witness, and that it wai* then 
|)ending in the (*<mrt, the parties to the suit, and the party for whom 
be WU& summoned. 



FROM MADISON. 



A plea in abatement was filed and demurred to bj 
the plaintiff. The demurrer was overrule), and the writ 
abated, at the January Term, 1859, W. H. Stephens, 
S. J., presiding. The plaintiff appealed. 

M. Bullock, for the plaintiff, cited and commented 
upon the Code, § 3814; Act of 1794, ch. 1, § 28; 
Martin v. Ramsey , 7 Hum., 260. 

TOMLIN, for the defendant. 

Caruthers, J,, delivered the opinion of the Court. 

This was an action of debt, brought upon a note, 
under seal, for (500, in Madison Circuit Court. At the 
appearance Term a plea in abatement was filed upon the 
ground that the summons to answer was served on the 
defendant while in attendance as a witness, under sub- 



472 JACKSON : 



James H, Baker v. John B. Compton. 



poena, in the Circuit Court. The demurrer to this plea 
was overruled, and the writ abated. The plaintiff ap- 
pealed to this Court. 

It is conceded that the Code, § 3828, copied from the 
act of 1794, ch. 1, § 34, makes the matter of this plea 
good in abatement, but it is insisted that it is not well 
pleaded. The reason why any process not against the per* 
son may not be served upon a witness, is not very manifest 
to our minds. But the language of the act is too plain 
for construction; and if it were doubtful, the case of 
Martin v. Ramsey^ 7 Hum., 260, has settled it. That 
was the case of the service of a subpoena to answer in 
Chancery, and was held to fall under the act, subject to 
plea in abatement. 

So the only question here is, whether the matter is 
well pleaded. All the authorities agree that great strict- 
ness and accuracy are required in pleas in abatement, 
and "no latitude in practice is extended to them." 9 
Yer., 10; 10 Yer., 527. They must be in the ** right 
form." If they commence and conclude in bar, the defect 
is fatal. 10 Hum., 506. 

The plea, in this case, is in these words: 

" The said John B. Compton, in proper person, comes 
and defends the wrong and injury, &c., and says that 
he ought not to be compelled to answer the said origi- 
nal writ sued out in this cause, because he says that he, 
the said Compton, was, on the day of suing out the said 
original writ and execution of the same, a 'i^itness in said 
Circuit Court, duly subpoened, &c. ; that he was, at the 
time of the execution of said writ, attending his duty 
in said Court as a witness, and that, according to the 
privilege granted to him during his attendance on said 



APRIL TERM, 1859. 478 



James H. Baker v. John B. Compton. 



Court as a witness, by statute made and provided in such 
cases, he ought not to be compelled to answer against 
his will any person in any civil action prosecuted against 
him by original writ in said Circuit Court, sued out 
against him at the suit of any person whatever. And 
the said Compton in fact saith that he is impleaded by 
said original writ as aforesaid, against his will and against 
the privilege granted to him by the statute made and 
provided in such cases; and this he is ready to verify. 
Wherefore he prays judgment of said original writ sued 
out in this cause, and that the same may be quashed/' 

We think this plea is fatally defective. Without 
noticing other objections, it does not show in what suit 
or for which party he was attending as a witness, nor, 
indeed, whether any suit was then pending, or in what 
Court he was giving his attendance. This is certainly 
too vague and indefinite for a plea in abatement, where no 
latitude of construction is allowed, because its object is 
to delay or defeat right and justice, upon a strict legal 
privilege against or aside from the merits. In such a 
case, the rule that requires the greatest strictness in 
making out this defence is just and reasonable. They 
should be certain to every intent. Bouv. Die, 17. 

In Martin v. Jfam$ej/j 7 Hum., 260, where the plea 
was held to be good, it will be seen that the Court at 
which he was attending, the parties to the suit, and the 
one for whom he was summoned, are all particularly set 
forth. All this, we think, is necessary to make a good 
plea in such a case. 

The judgment overruling the demurrer will be re- 
versed, and the case remanded for plea to the merits. 



474 JACKSON : 



F. B. Fogg et al. v. Samuel Williams eU aL 



F. B. Fogg et al v. Samuel Williams et ah 

1. Land Law. Cession Act, Omstitution, art. 1, J 31. The validity of 
North Carolina land claims is recognized by the Constitulion of Ten- 
noi^see, art. 1, 2 31. It is, in subslaince, declared that the sovereignt}' 
and right of soil of Tennessee arc subject to the conditions and pro- 
visions of the "Cession Act," and shall not ** extend to aftect the 
claim or claims of individuals to any part of the soil which is recog- 
niz(»d by the aforesaid Cession Act." 

2. Same. Same. North Carolina land claims. State a trustee for the 
claimtmts. The relation between the State of Tennessee and the 
owners of North Carolina land warrants* or other claims, is that of 
trustee and cestui que trust. The State, as trustee, cannot divest the 
claimants of their right, either directly or indirectly. And this trust 
is 80 incorporated with the claims and the land appropriated by theno, 
as to affect all subsequent en terers of the same land. 

8. Same. Same. Same. Independent of the exercise of any power or 
uuth(»rity in Tennessee, the owners of land appropriated under North 
Carolina land warrants, may be regarded as invested with an estate 
in fee-simple, merely bj- force of the Cession Act and the acts of ' on- 
jrrcss and of the General Assembly of Tennessee, passed in pur>uance 
thereof. 

4. Same. Same. Same. Power of the Legislature to anne-x conditions. 
Act of 1850, ch, 138. The Legislature, therefore, does not posv«*e>s the 
power to annex subsequent conditions, by which the failure of claim- 
ants, under North Carolina land warrants, to apply for a grant within 
a limited time, shall worjc a- forfeiture of their estates. 

5. Same. Forcer of the Legi laiure to annex conditions to tfie procuring 
of grants. Question resented. Has the Legislature the power to 
annex subsequent conditions and limitations in regard to the lime 
within which the cnterers of land, deriving their right from the ex- 
clusive sovereignty and right of soil in Tennessee, shall perfect their 
titles? 



FROM DYER. 



At the July Term, 1858, Chancellor Williams dis- 
missed the bill of* the complainants, and they appealed. 



APRIL TERM, 1859. 476 

F. B. Fogg et at, v. Samael WilUanr.8 et al. 

Cochran k Enlok, for the complainants. 

F. B. Fooo, for the complainants, said : 

The Cession Act, the Compact, the acts of Congress 
from 1818 to 1846, our Constitution of 1834, all recog- 
nize the validity of North Carolina land claims, and 
provide for their satisfaction. § 2, Meigs' Digest, pp. 
(>89-t)91, § 1212. And the last act of Congress, passed 
the 7th of August, 1846, surrendered to Tennessee their 
right and title to all lands south and west of the Con- 
gressional Reservation Line which then remained unap- 
propriated; but the lands thus rt;leased, and the proceeds 
thereof, were to remain subject to all the same claims, 
incumbrances, and liabilities in relation to North Caro- 
lina land warrants, or other claims of North Carolina, 
as if the lands still remained in the hands of the United 
States. The State of Tennessee had no title to the 
lands south and west of the Congressional Reservation 
before this act of Congress passed. She had no domain 
thereon — only the sovereignty, and the agency to satisfy 
the North Carolina land claims. Immediately after the 
passage of this law, on the 2d of November, 1847, by 
ch. 20, § 4, the act of Tennessee provided, "that any 
of the vacant lands, not claimed by occupancy or pre- 
emption rights, may be entered in the same way that 
vacant lands are now entered north and east of the 
Congressional Reservation Ijine." How was that done? 
By the acts of 1823, ch. 49, vacant lands could be 
entered at twelve and a half cents per acre; 1825, ch. 
64, at one cent per acre, and 1829, ch. 85, upon pay- 
ing twenty-five cents for making the entry and the other 






4T6 JACKSON : 



F. B. Fogg et al. v. Saipuel Williams et oL 



fees necessary for obtaining a grant. In other words, 
a gratuity from the Stjite to any individual who would 
enter vacant and unappropriated land. Was it intended 
to provide, or did it provide, that where land had been 
entered by a valid Noith Carolina claim, and the war- 
rant satisfied thereby, and the entry surveyed, and the 
plat and certificate recorded in the surveyor's ofBce, that 
because from some mistake, owing to deaths of parties, 
no grant had issued, that such land w^aa liable to be 
entered ? Until 1823, the non-issuance of a grunt had 
no effect, and the non-survey of the land entered had. 
no effect, except as between those in equalis gradu. 
If two North Carolina claimants were bound to have 
their claims satisfied by Tennessee, and this State pro- 
vided the mode and time, and one party complied and 
the other not, the diligent one would secure his land 
entered, surveyed, and granted, but no obligation of the 
contract to satisfy the claim in land remained unimp^ed, 
the claimant being at liberty to make an entry elsewhere. 
Summon V. Randolph, 6 Hay., 263-271; 4 Yer., 170; 
6 Yer., 236. These cases refer to claims that are 
equally meritorious, and that the State of Tennessee was 
bound to satisfy. 

The defendants having notice of the previous entry, 
survey, and appropriation of a North Carolina certificate, 
was it right, just, and conscientious in them to enter 
the same lands for nothing except fees cf office, &c« ; 
deprive the former owners of their rights on account of 
a mistake in not getting out their grants, even if it had 
been the law that the grant should issue in a limited 
time. Equity will not recognize such proceedings. 

I refer to a case of Ornich ^ Qregory v. Hieh9ian 



APRIL TERM, 1859. 477 



F. B. Fogg et al. v. Samuel Williams et aL 



^ MeEtpeUy decided in the Supreme Court at Nashville 
in 1828, for some principles analogous to those now con- 
tended for. The case has never been reported. 



T. J. Freeman, Bradford, and Hill, for the defend- 
ants, cited and commented upon 2 Hny. & Cobb, 16, S6, 
37, 58, 73, 74, 78; Acts of 1798, 1807, 1813, 1815, 
1819, 1828, 1835, 1850; 5 Yer., 286; 3 Peters' R., 280; 
1 Sneed, 604. 



McKiNNEY, J., delivered the opinion of the Court. 

This bill was filed to enj(»n the defendants from 
prosecuting an action of ejectment, brought bj them 
against the complainant, Tipton, who claims under Fogg, 
for the recovery of a tract of land of one hundred and 
seventy-five acres, lying jn Dyer county, and to have 
the legal title to said land divested out of the defend- 
anth, and vested in the complainant. 

The Chancellor, on the hearing, dismissed the bill, 
and the cause is brought to this Court by an appeal. 

The decision depends entirely upon the question of 
title. 

The complainant, Fogg, as assignee, claims under an 
entry made by John Mclver, on the "20th. of March, 
1821, founded on certificate warrant j No. 3792, issued 
by the register of West Tennessee, for one hundred and 
seventy^five acres, entered in the office of the thirteeath 
surveyor's district; which -entry was surveyed on the Ist 
of Januirry, '18S1| and the plat and certificate of survey 



478 JACKSON : 



F. B. Fogg et at, v. Samuel Williama tt aL 



were returned and recorded in said surveyor's office, on 
the 12th of February, 1831. But no grant was ever 
issued on said entry. 

The defendant, on the 1st day of September, 1851, 
made an entry of said land, in the entry-taker's office 
of Dyer county, and procured a grant thereon on the 
Ist day of October, 1852, with constructive notice, and, 
as is necessarily to be inferred, with actual knowledge 
that the land had been previously appropriated bj 
Mclver's entry, in satisfaction of a valid North Carolina 
land claim. 

The defendants insist, that by said entry and grant, 
they acquired a valid title; and the ground on which 
they rest their claim is, that by the failure of com- 
plainant to obtain a grant before the 1st day of Sep- 
tember, 1851 — the time limited by the act of 1849-50 
^^for making surveys and obtaining grants on all entries 
heretofore made in any of the land offices in this 
State '* — his entry became void, and the land was sub- 
ject to entry as other vacant land. And of this opinion 
was the Chancellor. Upon a careful consideration of the 
principles involved in the case, we are led to a differ- 
ent conclusion. 

It is obvious, that entries based upQn valid North 
Carolina land claims, recognized and provided for by 
the Cession Act, stand on very different ground from 
entries deriving their entire efficacy from the acts of 
the General Assembly of Tennessee. 

The right of the claimant to the land appropriated 
under a North Carolina land warrant, is not derived 
from Tennessee, but from North Carolina, under the 
provisions of the Cession Act. By solemn acts of legis- 



APRIL TERM, 1869. 479 



F. B. Fogg et at. p. bamucl Williams et at. 



lation, prior to the Cession Act, North Carolina had 
constituted herself a trustee for the officers and soldiers 
of her continental army, for the quantity of land to 
which they were respectively entitled. Pinson v. Ivey^ 
1 Yer., 297, 360. By the provisions of the Cession 
Act, the lands ceded were to remain subject to the 
satisfaction of all bona fide claims, of every description, 
which had been derived before the cession from the laws 
of North Carolina. This tru3t was devolved upon Ten- 
nessee, and was solemnly recognized by her compact 
with North Carolina, ratified . by the act of 1804, ch. 14, 
and by the act of Congress of 1806, ch. 31, and other 
acts of Congress, up to the act of 1846, whereby the 
right and title of the United States, u^ider the Cession 
Act, to all lands south and west of the Conirressional 
Reservation Line, which then remained unappropriated^ 
was surrendered to Tennessee; but upon the express 
condition, that the lands thus released, and the proceeds 
thereof, Were to remain subject to all the same claims, 
incumbrances, and liabilities, in relation to North Caro- 
lina land warrants, or other claims of North Carolina, 
as if the lands still remained in the hands of the United 
States. 

It has been settled by repeated decisions of this 
Court, that the relation between the State of Tennessee 
and the owners of North Carolina land warrants, or 
other claims, was that of trustee and cestui que trust. 
The State is regarded as having become bound to give 
the owner a complete legal title, vesting him with an 
estate in fee simple in the quantity of land to which 
he is entitled. The claimant is considered as having 
acquired an absolute vested right to the speoifio land 



480 JACKSON : 



F. B. Fogg et al «. Samuel Williams et al. 

appropriated by his warrant; and the State, as trustee, 
cannot divest him of this right, either directly or in- 
directly. And this trust became so incorporated with 
the 'claim, and the land appropriated by it, as to affect 
nil subsequient enterers of the same land — ^upon the 
familiar principle of equity, that where a purchaser has 
notice of the trust, though he pay a valuable consider- 
ation, he shall be subject to the trust. Pinson v. Ivey^ 
1 Yer., 309, 324, 359; 6 Ter., 190, 193. 

The validity of these North Carolina land claims is 
emphatically recognized by the Constitution of Tennessee, 
art. 1, § 31. It is in substance declared, that the sove- 
reignty and right of soil of Tennessee are subject to the 
conditions and provisions of the ^'Cession Act," and shall 
not ^'extend to affect the claim or claims of individuals 
to any part of the soil which is recognized to them by 
the aforesaid Cession Act.'' 

The right to the land appropriated by these '^claims," 
as before remarked, is derived, not from Tennessee, but 
from North Carolina. The former was merely invested 
with the naked power of issuing a grant to the bona 
fide claimant. And even the power to issue the grant 
is a delegated power, not emanating from her own inde- 
pendent sovereignty, but from the sovereignty of North 
Carolina. 6 Hay., 113, 117. 

Independent of the exercise of any power or au- 
thority in Tennessee, the owner of the land appropri- 
ated under a North Carolina land warrant, may be rt* 
garded as invested with an estate in fee simple, merely 
by force of the Cession Act, and the acts of Congre&s, 
and of the Qeneral Assembly of Tennessee, passed ia 
pursHftQC^ ^ th^^eof. 



\^ 



APRIL TERM, 1859. 481 



F. B. Fogg et aL v. Samuel Williams et al. 



If these principles be correct, it follows that the 
Legislature does not possess the power to annex a subse- 
quent condition, by which the failure of the claimant to 
ikpply for a grant, within a limited period, shall work a 
forfeiture of his estate. 

Tennessee iroluntarilj took upon herself the positive, 
active obligation to perfect the titles, by the issuance of 
grants upon all bona fide claims originating under the 
provisions of the Cession Act. This duty could have 
been easily discharged, consistently with her own obli- 
gations and the rights .of the claimants, by causing the 
grants to be in fact issued, and, if thought proper, 
making the necessary expenses incident to their issuance 
a charge upon the lands of the respective owners. But 
clearly, the Legislature, by merely providing for the 
issuance of a grant, on the application of the owner of 
the land within a limited time, could not, on the ground 
of his neglect to demand a grant within the time, de- 
stroy the right vested in him by his entry : This is a 
right which Tennessee did not give, and could not, in 
this manner, take away. 

This point is, perhaps, now directly decided for the 
first time in this State. It might have been raised 
upon the facts of the case of Sampson v. Taylor, 1 
8need, 600; but neither in that case, nor in any other 
known to us, was the question presented for determination. 

We do not deem it proper, at present, to discuss the 

question as to the power of the Legislature to annex 

subsequent conditions and limitations in regard to the 

time within which the enterers of land, deriving their 

ri^ht from the exclusive sovereignty and right of soil in 

Tennessee, shall perfect their titles. The question, in 
81 



482 JACKSON : 



James Lashley et al. v. T. WilkinaOD. 



this aspect, is not before us, and we intimate no opinion 
upon it. 

We likewise pass by the position assumed for the 
complainants, that their entry being prior to the act of 
1823, ch. 35, the case does not fall within the provis- 
ion of the ninth section of that act^-K^hoosing, rather, 
to rest the determination of the case on the more gen- 
eral ground before stated. 

The result is, that the defendants must be regarded 
as holding the legal title, ac(}uired by their grant, in 
trust for the complainants; and it will be so decreed. 

Decree reversed. 



James Lashley ei al. v. T. Wilkinson. 



1. Summary FROCEKDINO. Motion. Chnsiablc. Notice. Ina8umni»> 
ry proceeding, by motion, against a constable, the notice is sufficient 
if it describes the note placed in the constable's hands for collection — 
the date and amount — the date and amount of the Judgment rendered 
upon it, and the execution issued to him in the case — that the execu- 
tion had not been returned into the office from which it issued withio 
thirty days thereafter, nor the money due thereon paid oyer according 
to law ; and that, therefore, judgment is demanded against the officer 
and his securities for the amount of the judgment of the justice of the 
peace, with legal interest from the rendition thereof, and twelve and 
one-half jper cent, interest on the same from the time it was demanded, 
by way of damages. 

2. Same. Same. Fame. Scone. The validity of a notice, for the non- 
return of an execution, is not affected by the fact that it demands, as 
a legal conclusion, more or less by way of interest, or damages, than 
the plaintiff is entitled to. The law fixes the officer's liability upon 
the case statedi and it is the duty of ike court to give judgment for 
the proper amount. 



APRIL T£RM, 1859. 483 

« 

. ._ . 1. . ■_   I II II I II — I  II 

James Lashley et al. v. T. Wilkinson. 

3. Samk. Same. Same, Same. Variance. If the notice is, in other 
respects, good, a variance between the date of the execution produced 
on the trial and the one described in the notice will not be fatal. 



FROM PAYKTTB. 



At the February Tdrm, 1859, Humphrbts, J., presi- 
ding, judgment was rendered for the plaintiff. The de- 
fendants appealed. 

J. A. Anderson, for the plaintiffs in error. 

The first point contended for bj the plaintiffs in error 
is, that the notice does not sufficiently state the grounds 
of the motion, that is, whether for the non-return of 
the execution^ or for collecting money and not paying 
it over. The language of the statute authorizing the 
motion for non-return of an execution, is as follows : 
*' Provided the plaintiff, his agent or attorney, give to 
the constable or other returning officer, five days' notice^ 
at least, of the time and place of suchlmotion.*' Nichol- 
son & C, page 299. The statute requires notice of 
%uch motion. That is, it requires that the notice shall 
state the grounds of the motion. The notice in this 
case states that the constable had not returned the ex- 
ecution; and, also, that he had not paid over the money 
due thereon. It says that the motion will be made for 
'^ the amount of the judgment and legal interest from 
the execution thereof, and twelve and a half per cent, 
interest thereon from the time it was demanded, by way 
of damages." That is clearly a notice of motion for 
collecting and failing to pay over. The motion given by 



484 JACKSON : 



James Lashlej et al, v. T. Wilkinson. 



Statute for failure to return an execution, is for the 
amount of the execution, and twelve and a half per 
(Cent, damages thereon, absolute. The motion for money 
collected, is for the amount collected and twelve and a 
half per cent, per annum, from the time demand is made. 
Nicholson Sup., 105. There ia, therefore, a fatal vari- 
ance between the grounds of motion mentioned in the 
inotice, and the motion actually made. The constable 
had not five days notice of ** such " motion as was 
onade. 

The second point is this : The notice speaks of an 
execution issued on the 5th of June. The execution of- 
ifered in evidence issued on the 5th of April. Plaintiffs 
in error objected, at the trial, to the reading of said 
execution, as being a different one from that mentioned 
jind described in the notice. The variance is, clearly, 
fatal. The notice certainly ought to state the ground of 
Action. The failure to return every execution is a dU- 
iinct cause of action, and the party should have notice 
jof the exact execution, so that he may be prepared for 
defence. The authority relied on by the defendant in 
.error, is McMullen v. Goodman^ 4 Hum., 239. That 
is a case where the execution mentioned in the notice 
was described as an execution against J. L., and the 
execution offered in evidence was against J. L. and A. 
,L. The court held that not to be a fatal variance. 

The distinction between the two cases is this — in the 
.case recited the same execution is merely mis-describedy 
in the cas>e before the court the executions are necessa- 
rily different. In the case recited, the court says: "The 
execution was certainly against J. L., and in that par- 
ticular complies with the notice; but it is, also, against 



APRIL TERM, 1859. 485 

James Lash ley et al. v. T. Wilkinson. 

Almond Lowry, the stayor. Does this necessarily make 
it a different paper f " The court said not. But is not 
an execution described as issuing on the 5th of June, 
necessarily a different paper from one issuing on the 
5th of April? Clearly s^. 

This case, therefore, comes up to the test laid down 
by the court. The ground of the motion made before 
the magistrate for non-return of one execution — the proof 
before the Circuit Court is non-return of another — an 
entirely separate cause of action. 1 Sneed, 201. 



PuLLiAM, for the defendant in error, insisted that 
the notice given in this case was in substantial compli- 
ance with the law, and suflScient; and to sustain this 
position, cited the act of 1835, ch. 17, § 4; act of 
1842, ch. 37, § 1, Nich. Sup., 105; Cook v. Smith, 1 
Yer., 148-9. 

He also contended that the variance between the 
date of the execution mentioned in the notice — the 5th 
of June, 1856 — and the date of the execution produced 
on the trial — the 5th of April, 1856 — was an immaterial 
one ; and, therefore, not fatal. McMuUen v. Goodman, 
4 Hum., 239-40; Marshall v. Hill, 8 Yer., 101-3; 
Howard et ah v. Union Bank, 7. Hum., 26. 



Wright, J., delivered the opinion of the Court. 
Judgment was rendered, upon motion, against James 



486 JACKSON : 



James Lashley et al. v. T. Wilkinson. 



Lashlej, a constable of Fayette county, and his sure- 
ties in office, for the non-return of an execution placed 
in his hands. He and his sureties have appealed in 
error to this Court, and ask for a reversal of the judg- 
ment. 

The first error assigned is, that the notice does not 
sufficiently state the grounds of the motion — ^whether for 
the non-return of the execution, or for collecting and 
failing to pay over the money. 

We think the notice is, in this respect, sufficient. It 
describes the note placed in the officer's hands for col- 
lection — the date and amount of the judgment rendered 
upon it, and the execution issued to him in the case; 
and then states that the execution had not been returned 
into the office whence it issued, within thirty days from 
its issuance, nor the money due thereon paid over as 
the law directs; and that, 'therefore, judgment was de- 
manded against the officer and his securities for the 
amount of the judgment of the justice of the peace, 
with legal interest from the rendition thereof, and twelve 
and a half per cent, interest on the same from the time 
it was demanded, by way of damages. 

It is said the motion and judgment for the non-re- 
turn of the execution, differ from the case where the 
money has been collected and not paid over ; the for- 
mer being for the amount of the execution, and twelve 
and a half per cent, damages thereon, and the latter 
for the amount collected, with twelve and a half per 
cent, per annum interest, from the time demand is made 
of the officer. If we were to concede this difference to 
exist, still, we think, the notice was suffi'jient upon which 



APRIL TERM, 1859. 487 

James La»hley ei al. v. T. Wilkinson. 

to base a judgment for the non-return of the writ. It 
dietinctlj states the fact, that the execution had not 
been returned, and that, for that reason, a judgment 
would be demanded. The validity of the notice could 
not be affected by the fact, that it, also, asked for 
judgment for the non-payment of die money, nor by 
the fact, that it demanded, as a legal conclusion, more, 
or less, by. way of interest, or damapres, than the plain- 
tiff was entitled to. The law fixed the officer's liability 
upon the case stated, and it was the duty of the Court 
to give judgment for the proper amount. This was done. 

The next objection to the judgment is, that the ex- 
ecution, for the non-return of which the motion was 
made, when produced, appeared to have been issued on 
the 5th of April, 1856, whereas, the notice describes it 
ss having l^een issued on the 5th of June, in that 
year. This variance is said to be fatal. We do not 
think so. As we have seen, the notice fully described 
the note, and the judgment rendered upon it, and the 
execution, with great particularity, giving the amounts 
.and dates, with the names of the parties, with the ex- 
ception, only, that the 5th of June waa, by mistake, or 
clerical omission, substituted for the 5th of April. 

It was shown that no other execution issued upon 
the judgment, and that there was no other judgment 
between the parties to this judgment, in any way, to 
correspond with it. It is impossible, therefore, that this 
officer could have been misled by this notice, or that 
he could, for a moment, have hesitated, as to the exe- 
cution, for the non-return of which he and his sureties 
were sought to be held liable. It could have applied to 



488 JACKSON : 



J. H. Dean et al, v. A. Yaocaro & C<k 



no Other, for none other existed. If so, the object of 
the law is attained, as he could have come prepared to 
make his defence. 

The jadgment of the Circuit Court will, therefore^ 
be affirmed. 




J. H. D£AN et al. v. A. Yaccaro & Co. 

Cabrikr. Common. Delivery of ffoodsi Notice, Carriers by njh- 
roadSy or Bteamboats engaged id the internal coasting and river trade* 
in the absence of a contract for a particular mode of delivery, must 
deliver freight received by them to the owner, consignee, or some att- 
thorized agent, or safely land it upon the wharf at the place of desti- 
nation, or deposit it in their depot houses, and promptly notify the' 
cansignee. If delivered to a drayman, cartman, or any other person 
not authorized by the consignee, to receive it, it is at the risk of the' 
carrier. 

iSam£. Same, Same. Same, Effect of usaffe or custom. The usage' 
or custom of a port cannot dispense with delivery, or notice of the 
landing of the goods. Nor will the fact, that the consignee and othera, 
had submitted to a delivery of goods to a drayman, before, when no' 
loss occurred, bind him to yield his legal right to notice when it is to 
his interest to assert it. 

Samb. Same. Measure of damages if goods not delivered. Upon 
failure to deliver goods, by a carrier, as required by law, the net 
value of the goods at the place of delivery is the measure of damages; 



FROM MEMPHIS. 



Upon an agreed case his Honor, Judge Caruthebs; 
rendered judgment for the plaintiffs, at the November 
Term, 1858. Defendants appealed. 



APRIL TERM, 1859. 489 

J. H. Deftn et al, v, A. Vaccaro & Co. 

E. M. Yerqek, for the plaintiffs in error. 

Massbt, for the defendants in ^ror. 

Garuthbrs, J., delivered the opinion of the Court. 

This suit was instituted to recover the value of sev- 
eral boxes of cigars, forwarded by the steamboat Glen- 
dale, from Cincinnati, to the defendants in error, who 
resided aUd did business in Memphis. They were landed 
on the wharf at Memphis, and delivered over to one of 
the city draymen, by the clerk of the boat, to be car- 
ried to the consignee, Vaccaro, btt never delivered to 
him. On the arrival of the boat, the bill of lading was 
handed to Vaccaro, but no other notice given to him 
on the subject, and it does not appear by the case 
agreed, that he, in fact, had any notice of the arrival of 
the boat, further than it might be implied from the receipt 
of the bill of lading. The boat landed at the port on 
Sunday, and on the next day she was unloaded, and 
the cargo turned out upon the wharf at the usual place 
of landing, and the goods in question placed in charge 
of a drayman, as before stated. There is no evidence 
that Vaccaro was cogniz ^nt of any of these facts, or 
that any authority was given by him for that mode of 
delivery, except it may be implied from the usage of 
the port. 

The case was presented by agreement to the court 
below upon the facts and the law. About the facts 
there is no dispute, as they arc clearly set forth by the 
parties in the form of an agreed case, and are substan- 
tially, so far as they are material to raise the questions 
of law> stated above. 



490 JACKSON : 



/ 

/ 



J. H. Dean ti al. v. A. Yaccaro & Go. 



What shall be a 8u£Bci^nt deliy3rj to discharge a 
common carrier, by water, has given the courts some 
di£Scultj in all commercial countries. 

The general rule as to carriers is, that they shall 
deliver goods entrusted to them, to the bailor, or con- 
signee, his agent, or as he may be otherwise directed* 
1 Parsons on Con., 658, 660. 

As to the most important class of carriers by land — 
railroads — it is the usage, founded on necesMty, as they 
eannot leave their rails, to deposit freight intrusted to 
them, in their station warehouses; but the owner or con- 
signee must be notified. Id., 663. 

Upon the same necessity, to some extent, as the 
steamboat or ship cannot leave the water, a usage has 
ripened into law, that a delivery upon the wharf at a 
public port, with notice to the consignee, will excuse the 
carrier by water. When there is a contract for any 
particular mode of delivery, that will, of course, govern. 
But when the place and consignee are designated, and 
nothing more, the rule is, that the delivery must be 
made to the owner, consignee, or some authorized agent, 
or safely landed upon the wharf at the designated place 
of destination or delivery, and prompt notice to the 
consignee. Id., 669 and note z. If the goods are de- 
livered to a drayman, cartman, or any one else not author- 
ized by the consignee to receive them, it is at the risk 
of the carrier. 

The rules prescribed by the commercial and maritime 
code for ocean trade and foreign ports may b** different, 
and more favorable to the carrier as to the mode of 
delivery, but for the internal coasting and river trade of 
our country, the rule stated above must govern and reg- 




APRIL TERM, 1859. 491 

J. H. Dean et oZ. v. A. Vaocaro & Go. 

ulate the liability of the common carrier. 8 Louisiana 
Rep. 224, cited by Parsons in note z. 

The authorities are not in harmony in relation to the 
duty of the carrier in the coast or river trade. The 
case of Ottrander v. Brown^ in 15 John. 89, seems to 
require an actual delivery to the consignee to discharge 
the carrier from responsibility. But the conclusion of 
Mr. Parsons, that a delivery at the usual place at 
the port to which the goods are directed or consigned, 
with the knowledge of the consignee, by notice or oth- 
erwise, we think most reasonable, and better supported 
by authority. To require personal delivery would, in 
many cases, be impracticable, and if not so, would ope- 
rate seriously on the general interests of trade and 
speedy transportation. There can be no injury to the 
consignee with proper diligcHce and attention to his in- 
terest, where the goods are delivered at the proper wharf 
or landing, if he has knowledge of the fact. But with- 
out this, the goods would be put in jeopardy, with great 
danger of loss. ^ 

But even upon this relaxed rule of accountability, ' -^^ 
how does this case stand? There is no sufficient evi- '^ 

dence that the consignees had any knowledge of the 
arrival of the boat, and the landing of the goods. The , 

delivery of the bill of lading by the agent afforded no 
evidence that the boat had arrived, or the time when > 
it would arrive. It would not amount to notice of the 
time, or raise any reasonable presumption of it. To 
excuse the carrier, and relieve him of h's legal respon- 
sibility, notice must be given, or knowledge otherwise 
fixed upon the consignee; not only that the goods have 
been shipped, or are on the way, but that they are at 



\ 
\ 



\ 



492 JACKSON : 



J. H. Dean ei cd. v. A. Vaccaro Sl Co. 



the wharf, so that they may be taken charge of at 
once, and secured from hazard by the person interested'. 
This important fact is not made oat in the case before 
trs, and, therefore, the defendants were properly held 
Hable. The usage or custom of that' port cannot be al- 
lowed to excuse notice; it is enough to give it the 
effect of dispensing with actual delivery to the con- 
signee. Nor can the custom of delivering goods to pub- 
lic draymen have the effect of superseding the require-* 
ments of the law on this subject. That this consignee, 
and many others, had submitted to it before, when no 
loss occurred, would not bind them to yield their 'legai 
right to notice when it became their interest to assert 
it. Such a custom cannot chfiDge the law in that re- 
spect. 

A question is made as to the measure of damages. 
The Court allowed the value of the goods at Memphis 
instead of their cost at Cincinnati. There was a differ- 
ence of $100. At the latter place it is agreed they 
were worth or cost $500, and at the former ?600. 
Where a carrier makes a wrong delivery, or fails t» 
deliver, so as to become liable, " the net value of the 
goods at the place of delivery is the measure of dam- 
ages.'* 2 Par. on Con., 468; 8 John., 213; 15 John^ 
24. The case in 4 Hay., 114, is not in conflict. That 
case prescribes the measure of damages to be the value 
at the place of reception, and not delivery, where there 
is no fault or neglect, but admits it would be different 
where these exist. 

The judgment . will be /xfiirmcd. 



APRIL TERM, 1859. 493 



Charles A. Stockley v. Rowley, Ashburner & Co. 



Oharlks a. Stockley v. Rowlet, Ashburner k Co. 



Chancery Jurisdiction. Waiver. Act of 1852, ch. 866, { 9. Prior 
to the passage of the act of 1852. it was the settled rule that if a party 
neglected to make his defence at law, whether the defence were purely 
'iegal, or» from its nature, both legal and equitable, and no obstacle in 
the way ot such defence existed in the legal forum, he could not 
afterwards avail himself of it in a Court of Equity. But this rule is 
so far changed by the act of 1852, that, at least, in all cases not unfit 
for the investigation of a Court of Equity, if the defendant neglect 
to avail himself of the objection to the jurisdiction, by demurrer, and 
answers to the merits of the bill, the objection is waived and cannot 
afterwards be insisted on. 



FROM MEMPHIS. 



The bill was dismissed by his Honor, Judge Carutii- 
ERS, at the May Term, 1858. The complainant ap- 
pealed. 

E. M. Yerqer, for the complainant. 

Fraud being originally and properly cognizable in 
equity, is a ground for coming into a Court of Equity 
for relief against a judgment, although the complainant 
attempted, unsuccessfully, to avail himself of it in the trial 
at law. Thus, a patty sued on a bill single for hire 
of a slave^ represented to be sound, but really unsound, 
and known to be so by the obligor, will not be repelled 
from a Court of Equity when asking for relief against 
the judgment, though he attempted to bar the suit at 



494 JACKSON : 



Charles A. Stockley t;. Bowley, Ashbumer A Oo. 



law by relying on the fraud. Cooke, 242, 245; 1 Meigs* 
Dig., p. 243j sec. 8, of title 404. 

Fraud, to say the least, is of both legal and equita- 
ble cognizance, and the defendants having answered to 
the merits, a Court of Chancery will take jurisdiction. 

There is another objection to the defence of former 
judgment. The defendants rely upon it in their answer. 
This cannot be done. It can only be available by plea. 
1 Meigs' Dig., p. 244. 



T. S. & S. W. Ayrbs, for the defendants. 

Where a Court of Law having jurisdiction of the 
parties and subject matter, has heard and determined 
the facts and rendered judgment, a Court of Chancery 
will not afford any relief. 

A Court of Chancery can give no relief against a 
judgment at law, on the ground of a defence which the 
party could have made at law, unless he was prevented 
from so doing by accident^ frauds or some act of the 
opposite party. Q-winn v. Newton,^ 8 Hum., 710 ; Rice v. 
B. B. Bankj 7 Hum., 89. 

In this case, the matters set up in the bill of com- 
plainant shows a defence purely legale which was made 
at law, and heard and determined by the Court of Law, 
and a Court of Chancery will not afford relief. White 
v. Cahal^ 2 Swan, 550; Bumpass v. Beams^ 1 Sneed^ 
595. 



APRIL TERM, 1859. 495 

Charles A. Stock ley v. Bowley, Ashburner Sb Go. 

MgKinnet, J., delivered the opinion of the Court. 

This bill was filed to enjoin a judgment recovered 
by the defendants against the complainant, on a promis- 
sory note for $413.17, made by the latter to the former 
on the 14th day of April, 1854, payable six month» 
from date. 

The consideration of the note was a quantity of oil 
sold by the agent of defendants to complainant, in the 
city of Memphis. The bill alleges that the agent of 
defendants, at the time of the sale, represented the oil 
to be what is called '^machine oil,'' and to be of good 
quality, and suitable for that purpose. But that it wa» 
found, on examination, to be entirely unfit for the use 
for which it was purchased, and of little or no value. 

The answer denies that the oil was unfit for the use 
for which it was purchased; and it is also denied, that 
the defendants' agent made any representation to the 
complainant whatever, in respect to the kind or quality 
of the oil. 

The proof of two witnesses establishes very fully the 
representations of the agent as to the description and 
quality of the oil as charged in the bill. The witness, 
Guthrie, proves that he purchased some of the oil from 
the complainant, and sent a barrel of it to the Memphis 
and Charleston Railroad ; but it was returned to him a& 
of no value, and the superintendent stated that it ^^ nearly 
ruined his engines." 

The Chancellor dismissed the bill on the ground, it i» 
said, of want of jurisdiction to interpose after a trial and 
judgment at law. 

The decree ignores the effect of the act of 1851-2, 



496 JACKSON : 



Isabel B. Bradford v, R Caldwell el aL 



ch. 365, sec. 9. Before the passage of that act, it was 
the settled rule, that if a party neglected to make his 
defence at law, whether the defence were purely legal, or, 
from its nature, both legal and equitabb, and no ob6ta<- 
cle in the way of such defence existed in the legal 
forum, he could not afterwards avail himself of it in a 
Court of Equity. But this rule is so far changed by the 
act above referred to, that, at least, in all cases not 
unfit for the investigation of a Court of Equity, if the 
defendant neglect to avail himself of the objection to the 
jurisdiction, by demurrer, and answers to the merits of 
the bill, the objection is waived, and cannot afterwards 
be insisted on. 

Such is the present case, the defendants having an- 
swered without exception to the jurisdiction, and they 
are now precluded from doing so. 

The case must be remanded for an account. From 
the allegations of the bill, the oil was not entirely 
worthless; and, therefore, the failure of consideration was 
only partial ; consequently, the complainant must account 
for its reasonable value, with interest thereon. 

Decree reversed. 



Isabel B. Bradford v. R. Caldwbll et oL 



LIM1TATI0^8. Statute of. When it will bar a life estate. If a person own 
a life estate in a slave, which he can sell and transfer, or which can 
be sold by execution ; and such person, for a valuable consideration,' 
sells and transfers said slave to another, who takes possession thereof 



APRIL TERM, 1850. 497 



iBabel B. Bradford v. R. Caldwell et al. 



and holds and clainu the slave, adversely, for a period of three years, 
the statute of limitations will perfect his title and protect the posses- 
sion, so far as the life estate is concerned, against the person from 
whom the slave was purchased, his creditors, and all other persons, 
except the owner of the remainder. 



FROM MEMPHIS. 



Upon the hearing, at the November Term, 1868, 
Caruthsrs, J., presiding, the bill of complainant was 
dismissed. She appealed. 

W. K. PosTON, for the complainant. 

It cannot be questioned that, so far as the life estate 
is concerned, Mrs. Bradford's possession was adverse te 
the widow's* 

''Adverse possession of a slave for three years bars 
the former owner's remedy to recover the slave, ^nd 
vests the right of property in the possessor." Kegler 
V. Mile9, M. and Y., 426, 430. 

''A possession acquired by means of a verbal gift 
and delivery of a slave, if continued three years with- 
out interruption, will vest the possessor with title by 
operation of the statute of limitations, though the gift 
alone be inoperative in law or equity." 4 Yer. R,, 
607-9; 8 Yer. R., 145^9; Meigs' R,, 427, 434^6; 6 
Hum. R., 76, 84. 

Mrs. Cowden, surely, could not have recovered in an 
action against the complainant, Mrs. Bradford, whatever 

of interest she had passed to Mrs. Bradford by her bill 
82 



49i» JAOKSON : 



Isabel B. Ktidfofd v. B. Caldwell et td. 



of sale; and if registratioii had been Decessary, to make 
the sale good, still, three jears tininternipted possession 
perfected the complainant's title. If Mrs. Cowden had 
no right or remedy, those claiming under her are in no 
better condition. 

The case of Turner t. Turner^ 2 Sneed, 27, is 
essentially dififerent from this. The principle there de- 
cided is, that a person cannot, under a loan from the 
true owner, set np a claim to a life estate, and by 
holding under that claim, acquire, by operation of tiie 
statute of limitations, this qualified estate. In that oase^ 
as in this, there were not two distinct and separate 
estates upon which the statute could operate; and the 
court held that the estate could not be divided and a 
less estate carved out by operation of tha statute. 



E. M. Ybrger, for the defendants. 

McKiNNBY, J., delivered the opinion of the Court. 

The bill seeks to enjoin the sale of certain slaves, 
upon the following state of facts. 

The defendant, Ellen P. Cowden, was lawfully vested 
Irith VI interest, during her own life, in the slaves men- 
tioned in the bill. On the 23d of December, 1851, in 
consideration of the sum of 91600, to her paid by Mrs. 
Bradford, the complainant, the fonner sold and conveyed 
her said life interest in said slaves to the latter, to her 
sole and separate use: the complainant then, and Btill, 



APRIL TERM, 1859. 49d 



Inbel B. Bnuiford v. R. Galdw«11 ei oL 



being a married wotnan-*^wife of the defendant, Simon 
Bradford. 

In pnrguanve of said sale, the slaves were deUrered 
to the complainant, who retained the undisturbed posses- 
sion of them for a period of more than three years be- 
fore the filing of this bill, claiming the life interest in 
them conveyed to her as above stated. The bill of sale 
for the slaves, from Mrs. Gowden to complainant, was 
never registered. 

The defendants, Caldwell & Co., on the 14th of 
March, 1856, recovered a judgment against Simon Brad- 
ford, (the husband of complainant,) and said Ellen F. 
Cowden, jointly, for the sum of 98268.57, upon which 
execution issued and was levied upon said slaves. And 
the question is, whether or not said slaves are subject 
to the satisfaction of the judgment. 

It is clear, that so far as regards the creditors of 
the husband of complainant, registration of the bill of 
sale was not essential. 

But as respects the creditors of Mrs. Cowden, it ia 
equally clear, that by reason of the non-registration of the 
bill of sale, the slaves remained subject to the satisfaction 
of their debts. Admitting this to be so, it is insisted for 
the complainant that her title was perfected by opera- 
tion of the statute of limitations, before the date of the 
defendant's judgment ; and this position, it seems to us^ 
cannot be successfully resisted. The case of Turner v. 
Turnery 2 Sneed, 27, is not an authority against the 
correctness of this conclusion. That case holds, that 
a life estate cannot be created by operation of the 
statute, against the acknowledged owner of the reversion, 
from whom the possession has been obtained. The case 



600 JACKSON: 



iBBbel B. Bradford «. B. Caldwell ei aL 



is a peculiar one, and was correctly decided upon the 
facts of the particular case. But the principle is not 
applicable to the facts of the case before us. Here, it 
is admitted, that a valid life estate in the slaves existed 
in Mrs. Gowden. This was an interest which she might 
^ell and transfer to another, or it might have been sold 
upon execution by her creditors. She did, in fact, sell 
it, for a valuable consideration, as is admitted in the 
agreed case in the record. The sale was not by parol, 
but by a conveyance in writing, in proper form; and 
wunder this bill of sale, the complainant held the slaves, 
•claiming an estate for life in them, for a period of 
more than three years before the defendants obtained 
I their judgment, or caused the slaves to be levied on. 

Upon these facts, we are at a loss to perceive any 
reason why the statute of limitations should not inure 
"to perfect the title, and protect the possession of the 
^complainant, so far as her life estate is concerned: at 
least, as to all persons against whom she might, by law,* 
.set up an adverse possession: that is, against the per- 
>son from whom she purchased, her creditors, and all 
•other persons, except the owners of the remainder in- 
terest in the slaves; as against the latter, she could not, 
.X)f course, set up an adverse possession. 

From this view of the case, it follows that the decree 
lis erroneous; and it will be reversed, and a decree be 
onade in favor of the complainant. 



APRIL TERM, 1859. 501 



G. J. Boberts v The State. 



G. J. RoBBBTS t;. The State. 

1. Criminal Law. FaUe pretence. Code, \ 4701. The Code, { 4701, 
provides that *' every person who by any false pretence, or by any false 
token, or counterfeit letter, with intent to defraud another, obtains 
from any person any personal property <m the signature of any per- 
son to any written instrument, the false making of which is forgery, 
shall, on conviction,'* &c. The word on^ in the third line, after 
*' property," is, by misprint, or clerical error, substituted for cr, and 
it should read, ** or the signature of any person to any written inatru- 
ment," &c. 

2. Same. Same, Ptteaing eounUrfeit coin. The offence of passing 
counterfeit coin is a distinct, substantive felony, of higher grade from 
that of obtaining goods by false pretences, created by the act of 1842 ; 
and if the false pretence be the passing of counterfeit coin, the in- 
dictment cannot be sustained. 

8. Same. Same. Same. To constitute the offence of passing counter- 
feit coin, the spurious coin passed must be a representation of genuine 
coin on both sides. If it be a piece of spurious metal, about the size 
of current coin, representing it on one side, but merely an advertise- 
ment on the other, and not purporting to be coin, the passing of it 
(the other requisites existing) is a false pretence, under the statute. 



FROM MEMPHIS. 



The plaintiff in error was tried and convicted in the 
Criminal Court of Memphis, at the February Term, 1859, 
McKiBRNON, J., presiding. He appealed. 

Browk & Kino, for the plaintiff in error. 

Snbed, Attorney General, for the State. 

Caruthers, J., delivered the opinion of the Court. 

The indictment and conviction in this case was for 
obtaining twenty dollars in bank notes by false preten- 



502 JACKSON : 



G. J. Roberts v. The Stole. 



ceSy under the Code, art. 5, p. 844. The term of im* 
prisonment was fixed at seven years. 

Code, § 4701 : " Every person, who by any false 
pretence, or by any false token, or counterfeit letter, 
with intent to defraud another, obtains from any person 
any personal property, on the signature of any person 
to any written instrument, the false making of which is 
forgery, shall, on conviction,'' &c. The difficulty made 
upon the section is entirely obviated by changing the 
word on to or, in the third line after the word *^ pro- 
perty," which was evidently intended, and must be re* 
garded as a clerical error or misprint. It would be 
nonsense as it stands, and must be read with the change 
suggested. It would then so read as to make the 
** obtaining" of property, including money, or ^^obtain- 
ing " the name of any one to an instrument, by false 
pretences, tokens, or counterfeit letters, felony. This 
last branch of the offence is not in the act of 1842, 
but is certainly an improvement of it. This reformation 
of the language of the act, by changing the word '^ on " 
to *^or" is indispensable to make it intelligible. 

It is insisted, that if the plaintiff in error, and his 
accomplice. Smith, whose case is not now before us, are 
guilty of any offence, it is that of passing counterfeit 
coin, and not the offence charged. This position is cor* 
rect, if it applies, as we have heretofore held. It was 
not intended by the act of 1842, or the Code, § 4701, 
to cover or give a new name to the then existing and 
long established offence of passing counterfeit money, but 
to create a new felony. So if the crime here consisted 
of passing counterfeit coin for goods or bank notes, the 



APRIL TERM, 1859. 503 



0. J. Bobertfl v. The State. 



coDvictioa would be erroneous, because that is not the 
charge in the indictment. 

These are the facts, as stated by the prosecutor, 
Stephen Gibson: 

" On the 10th of February, 1859, he was at a board- 
ing-house, near the Memphis snd Charleston Railroad 
depot, in company with two gentlemen from Arkansas; 
that while conversing with them, the defendant, Roberts, 
came up to them &nd joined in the conversation. He 
told defendant, Roberts, that he was from Alabama, and 
a stranger in Memphis. Roberts spoke of the danger to 
be apprehended by strangers from pickpockets, thieves, 
and swindlers who infested the depot and city; that 
they all walked over to the depot, still talking about 
thieves, ke. ; that soon after they reached the depot, 
snd were standing near the lamps, Wm. Smith, who is 
jointly indicted, came up to where they were standing, 
and asked Roberts if he could change for him a twenty 
dollar gold piece. Roberts said he did not know, but 
would look and see, and pulled out his port-moiinaie and 
examined it, and said that he could not, but perhaps 
the gentleman from Alabama could give him the change. 
Witness then said he believed he could, and walked to 
the light with Roberts and Smith, where he pulled out 
his pocket-book and took therefrom two five dollar bills, 
one on an Alabama and the other on a South Caro- 
lina bank, and a ten dollar bill on the Bank of Ten- 
nessee, and handed the same to Smith, who thereupon 
handed witness what he, at first, took to be a twenty 
dollar gold piece, but which was in fact a piece of spu- 
rious metal, about the size of a twenty-dollar gold piece, 
which was the color of gold; and upon one side could 



504 JACE80N 



C. J. Boberts v. The State. 



not be distingitished, without cloee inspection, from genor 
ine gold coin; but on examination of the other side, il 
could be easily and readily discovered to be but an 
advertisement, and did not purport to be ffold coin.** 
Smith immediately made off with the bank bills, before 
the witness had inspected the metal, which he at once 
discovered to be base metal, but could not overtake 
Smith. The defendant denied having any acquaintance 
with Smith ; but made bis escape while the prosecutor 
went after a policeman. They were both soon after ar- 
rested, and found to be well acquainted and both had 
in possession the same kind of metal pieces passed to 
defendant. The proof leaves no doubt of the comply 
city of Koberts with Smith, or the guilt of both. 

This was not counterfeit coin ,as it did not purport 
to be a representation of gold coin, when examined, but 
a false imitation of it only on one side. It was a 
trick, and base contrivance, and false pretence to obtain 
money or property fraudulently. This is the offence 
charged against them. This objection, then, cannot be 
maintained. 

Again, it is insisted that the imposition could have 
been easily detected by ordinary care, and therefore it 
does not constitute the offence charged. This does not 
fall within that class of cases contained in the books re- 
ferred to. It was calculated to deceive, and did deceive 
under the circumstances. The time, place, and circum- 
stances are all to be taken into view in determining 
this question. Only one side of the metal was presented, 
and that by a dim light, and in the hurry and confi- 
dence of the moment, was calculated to deceive and 
accomplish the fraudulent purpose. We are not disposed 



APRIL TERM, 1859. 606 

Zacfaariah Dement v. The State. 

to carry this defence to the extent of some of the 
cftses relied upon, to screen the guilty thief from the 
penalty of the law for this most detestable species of 
larceny. The trick must be obvious and palpable to 
ordinary observation — the circumstances all considered — 
io constitute this defence. 

The conviction is well sustained by the law and evi- 
dence, and the judgment is affirmed. 



Zachariah Dement v. The State. 

CaiMiNAL Law. Passing a counterfeii Bank note. Rule as io resem- 
blance. If a party is indicted for passing a counterfeit resemblance 
or imitation of a genuine bank note, to authorize a conviction, the im- 
itation or resemblance must be such as to be capable of imposing on 
persons of ordinary observation. 



FROM OBION. 



The plaintiff in error was tried and convicted at the 
February Term, 1869, Williams, J., presiding. He ap- 
pealed in error. 



-, for the plaintiff in error. 



Sneed, Attorney General, for the State. 

McKiNNEY, J., delivered the opinion of the Court. 

The prisoner was convicted in the Circuit Court of 
Obion, and sentenced to three years confinement in the 



606 JACKSON : 



Zachariah Dement v. The State. 



penitentiarj, for the supposed offence of passing a coun- 
terfeit bank note. 

The indictment charges, that the note was the coun* 
terfeit resemblance or imitation of a genuine ten dollar 
bank note issued by the Bank of Tennessee. 

The proof shows, that the note passed, a copy of 
which is set out in the indictment, was in fact a gen- 
uine note, issued by the president, directors and company 
of the Bank of East Tennessee; but altered by the 
erasure of the word ^^East." 

The Court instructed the jury, in substance, that it 
would be sufficient to support the charge in the indict- 
ment, if the note passed by the prisoner was such a 
resemblance of a ten dollar note of the Bank of Ten- 
nessee, ^^as might probably be passed off on a earelcM 
and negligent person,'' although it might not be, ^Mn 
many respects,'* exactly like the genuine note. This was 
stating the rule applicable to such cases too strongly. 
The correct rule is, that the imitation or resemblance 
must be such as to be capable of imposing on persons 
of " ordinary observation.'* 

Such is not the character of the note in question. 
In a legal sense, it bears no resemblance to a genuine 
note of the Bank of Tennessee, and no one of '^ ordinary 
observation " could be deceived or imposed on by it. 

The indictment contains no count for forgery. 

The judgment is erroneous, and it will be reversed, 
and the prisoner be remanded for a new trial. 



APBIL TERM, 1859. 507 



J. M. Ffttriok v. S. O. Melson A Co. 



J. M. Patrick t;. S. 0. Nklson & Co. 



1. Writ or Errob. Bond, Code, { 8177. The bond to be given upon 
suing out a writ of error, whether the application be to the clerk of 
the court, or a Judge thereof, or to the court itself, and whether a su- 
p«rB&deas iwue or not, must, by { 8177 of the Code, be the same as in 
an appeal in the nature of a writ of error, 

2. Same. Same. Upon an appeal in the nature of a writ of error. Code, 
{ 8162. By the Code, { 8162, in actions founded upon liquidated ac- 
counts signed by the party to be charged therewith, bonds, bills sin« 
gle, Ac, upon an appeal in the nature of a writ of error, the bond 
shall be taken, and the securities bound for the payment of the whole 
debt, damages and costs, and for the satisfaction of the Judgment of 
the superior court, where the cause may be finally tried and deter- 
mined. The bond must be the same if a case is brought up by a writ 
of error, 

8. Same. Same. Motion to dismiss for want of. What may he looked 
to. Upon a motion to dismiss for want of a sufficient bond, the court 
cannot look to, or decide whether there be error in the record or not. 
It is sufficient to authorise the dismissal oi the writ if it appear that 
the proper bond has not been executed by the party. 



FROM MEMPHIS. 



At the July Term, 1858, a judgment was rendered 
against the defendant, Garuthbrs, J., presiding, and he 
filed a transcript of the record with the clerk of the 
Supreme Court, who, upon a bond being executed for 
costs, issued a writ of error. 

T. S. k S. W. Atbrs, for the plaintiff in error. 



-, for the defendant in error. 



608 JACKSON : 



J. M. Patrick v. S. O. Kelson & Co. 



Wright, J., deliyered the opinion of the Court. 

This is a motion bj S. 0. Nelson k Co., to dis- 
miss the writ of error for want of a sufficient bond. 

The plaintiff in error, a merchant at Memphis, doing 
business under the style of J. M. Patrick k Co., was 
sued in debt by S. 0. Nelson &; Co, in the Common 
Law Court of Memphis, upon an account, and judgment 
had against him. 

The account appears to have been created in New 
Orleans, in 1855; and at the foot of it is the follow- 
ing acknowledgment, signed by J. M. Patrick & Co.: 

^'We acknowledge the correctness and justness of the 
above account of nine thousand and eighty-eight dollars 
and ninety-three cents, bearing interest at the rate of 
eight per cent, per annum, since the 8th of June, 1855. 

J. M. PATRICK & CO." 

This account was specially declared upon, and profert 
made of it in the declaration. 

The plaintiff — within twelve months after the rendi- 
tion of the judgment — has filed, with the clerk of this 
court, a transcript of the record, and obtained from him 
a writ of error, upon giving a bond for costs only. No 
supersedeas was asked for or issued, and the question 
now is, whether this bond is sufficient. And we hold 
it is not. 

Section 3162 of the Code provides that in actions 
founded upon liquidated accounts, signed by the party 
to be charged therewith, upon an appeal in the nature 
of a writ of error, the bond shall be taken, and the 
sureties bound, for the payment of the whole debt, 



APRIL TERM, 1859. 609 

J. M. Patrick V. S. O. Nelson & Co. 

damages and costs, and for the satisfaction of the judg- 
ment of the superior court, where the cause may be 
finally tried and determined; and in such case the ap- 
pellant shall pay interest at the rate of twelve and a 
half per cent, per annum. 

In the same section certain other enumerated instru- 
ments — such as bonds, bills single, &c. — are put upon a 
like footing. And in section 3163, in all other cases of 
appeal in suits at law, not mentioned in the previous 
section, the bond shall be for damages and costs, only, 
and the rate of interest shall be six per cent, per an- 
num. 

Section 8177 provides that a writ of error may be 
moved for, and obtained, in the appellate court, or is- 
sued by the clerk of the appellate court in vacation, 
upon the transcript of the record being filtd in his of- 
fice, and bond given as required by law. 

Sections 3180 and 3181 prescribe the time within 
which a writ of error shall be prosecuted, namely : to 
the clerk within one year, and to the appellate court, 
or a judge thereof, within two years after the judgment 
or decree. 

And, finally, section 3184 provides that the bond re- 
quired from the applicant for the writ of error, and the 
proceedings in the appellate court thereafter, shall be 
the same as those upon an appeal as therein before 
provided in that chapter. 

It will thus be seen, that by the express provisions 
of the statute, whether the application for the writ of 
error be to the clerk of this court, or a judge thereof, 
or to the court itself; and whether a fupersedeas issue 
or not; the bond must be the same as in an appeal in 



610 JACKSON : 



James N. Wilson v. B. G. Beadle et €U. 



the nature of a writ of error. From thift we cannot 
escape, because the statute is general, and makes no 
exception of the case where no supersedeas is had. 

We, also, think the account upon which the judg- 
ment in this case was rendered, must be held to be a 
liquidated account within the meaning of section 8162 
of the Code, and the bond must be as there directed. 

We are not permitted, upon this application, to de- 
cide whether there be error in this record or not, nor 
upon the effect of the stipulation in the acknowledg- 
ment at the foot of the account, to pay eight per cent, 
per annum interest; nor whether this was executed in 
New Orleans or not. These matters can only come up 
for decision when a proper bond is given, and the case 
is regularly before us. 

It' is enqpgh that we can see that the writ of error 
is sought to be prosecuted from a judgment rendered 
upon a liquidated account, signed by the party to be 
charged therewith. We are bound to require the bond 
before we proceed further. 

The result is, the motion must be sustained. 



James K. Wilson v. B. G. Bbadls et til. 



1. Attachhvnt. Aetof \Mt, ch, 29, { 1. In wheX cosbb an Math- 
meni wUl lie. By the act of 1848, ch. 20, 2 1, in all cams wImto a 
debtor shall be absconding or concealing himself, or his property or 
efllwti, a creditor may Eoe out an attachment agttittst tile property 



APRIL TERM, 1859. 611 

James N. Wilson v. B. G. Beadle et aL 

debts, ehoaet in tuition, and eifects of such debtor, in the same manner 
that such process may be obtained against absconding or non-resident 
debtors under the different statutes in force in this State. 

2. Sams. Same, nhtdgment not necessary before suing out the aHack" 
ment Chancery Jurisdiction. The act of 1848 confers upon the 
Chancery Court jurisdiction for the recovery of demands purely 
legal in attachment cases, and no preyious suit or Judgment, on the 
part of the creditor, is necessary before suing out the attachment. 

8. Samk. Act of 1862, eh, 865, { 10. Fraudulent conveyances. By the 
act of 1852, ch. 865, | 10, a creditor is authorized to file a bill for an 
attachment, without a judgment at law and an execution with a return 
of nulla banm, in all cases where a conveyance is made by a debtor, of 
property, either real, personal or mixed, of any description to which 
he has a legal or equitable title, for the purpose of hindering, delay- 
ing, or defrauding his creditors. 

4. SAifK. Suvu. Same, Efnbrades ehoses in action. This aet not only 
embraces conveyances of what is, strictly, termed property, but also 
fraudulent assignments of claims, and every species of chases in ac- 
tion. 



FROM MEMPHIS. 



The bill was dismissed by his Honor, Judge Oabuth- 
ERS, upon demurrer, at the May Term, 1858. The bill 
and amended bill, in substance, charged that the defend- 
ant, Beadle, was indebted to the complainant in the sum 
of $500; that Beadle and his wife sold a tract of land, 
jointly, to their co-defendant, W. L. Delany, for the 
sum of $2500, he executing his notes for the purchase 
money ; that the note first due was payable to and 
endorsed by the defendant, Finnic, and the others were 
payable to his wife, Dorcas C. Beadle; that the notes 
payable to Dorcas C. Beadle were executed to her and 
endorsed to the defendant, Payne, to defraud the credi- 
tors of the «Md B. G. Beadle, and that he was con- 
cealing his properly and effects. 



612 JACKSON : 



James K. Wilson v, B. G. Beadle et al. 



Tergbr and Sullivan, for the complainant. 
Vance and Anderson, for the defendants. 
Wright, J., deliyered the opinion of the Coart. 

The Chancellor dismissed the bill and amended bill 
upon demurrer. 

This decree is erroneous.. The act of 1843, ch. 29» 
sec. 1, provides (among other things) that in all cases 
where a debtor shall be absconding or concealing himself, 
or his property or effects, it shall be lawful for the 
creditor to obtain an attachment against the property, 
debts, choses in action, and effects of such debtor, in 
the same manner as such process may be obtained against 
absconding or non-resident debtors under the different 
statutes now in force in this State. In the case of 
Isaaeks and wife v. JEdwards, 7 Hum., 465, it was held, 
that this act of Assembly conferred upon the Chancery 
Court jurisdiction for the recovery of demands purely 
legal in attachment cases, and that no previous suit or 
judgment on the part of the creditor was necessary. 

This embraces the present case. The amended bill, 
if the original does not, alleges that the defendant, B. 
0. Beadle, is concealing his property and effects, and 
was concealing the same at the time of filing the origi- 
nal bill. 

But it is said the amended bill contains no prayer 
for an attachment. This was unnecessary. The original 
bill did, and the amended bill incorporated itself with, 
and become a part of it. Moreover, we think, the origi* 
nal bill itself made a proper case for an attachment 



APRIL TERM, 1859. 518 

James N. Wilson v. B. G. Beadle ei al. 

under the act of 1852, eh. 365, sec. 10, if it did not 
under the act of 1843. 

Under that statute it was not necessary for the 
creditor to come into Chancery with a judgment at law, 
and an execution with a return of no property. He 
was authorized to file a hill in all cases where a con- 
veyance is made by a debtor, of property, either real, 
personal or mixed, of any description, to which the title 
was legal or equitable, for the purpose of hindering, 
delaying, or defrauding his creditors. 

It is argued here, that the word conveyance used in 
the statute, does not comprehend the fraudulent assign- 
ment of a chose in action. We think it does. It is 
true, that in its more restricted sense it is often limited 
to conveyances of what is strictly termed property; but, 
in its more enlarged meaning it embraces assignments 
of claims, and every species of choses in action. Here 
the words of the act are very comprehensive, and statutes 
made to suppress fraud are to be liberally expounded. 

Again, it is argued that the notes on Delany, whether 
made payable to B. G. Beadle, the debtor, and by him 
assigned to his wife, D. 0. Beadle, or made payable to 
her directly, would, as between them, they being hus- 
band and wife, be a mere nullity, and leave the title to 
the notes still in the husband, and that such an assign- 
ment could not be considered as standing in the way of 
creditors within the meaning of the act of 1852. 

If we were to concede this to be so, (1 Bac. Ab. 

Baron and Fame D., 705 ; McNeilage v. Halloway^ 1 

Bora, and A., 218,) still the bill and amended bill go 

further. They allege that the defendant, B. G. Beadle^ 

had made, or caused his wife to make, a fraudulent 
88 



514 JACKSON 



Hagh Leslie v Joseph Joyner. 



assignisent and deposit of these notes with the defendant 
Payne, to hinder and delay his creditors. 

The decree will be rerersed, and the cause remanded 
for an answer* 



Hugh Lbslib v. Joseph Joykbr. 



JPaATTDULiEKT CoKTBTAVCXS. Debtor and creditor. What liable to 

creditors. A con-veyftnce of an interest not liable to creditors, though 

fraudulent, is not within the provisions of the statute of frauds. 

.'Neither can the creditor coerce the debtor to labor for his benefit. If, 

' therefore, a debtor, by an agreement with his son, permit him to 

'have the U8e of his horse and the services of two other sons, who are 

minors, to raise a crop, and furnish the family with provisions for 

: that year out of the crop — reimbursing himself for the supplies thus 

.furnished, and also to retain reasonable wages, and whatever beyond 

* this remained of the proceeds of the crop was to go to the payment of 
the father's debts — such agreement is not a fraud upon the credltorf 

• of the father, and the crop raised is not liable to execution. 



PROM HENDERSON. 



This cause was heard before his Honor Judge FiTS> 
•GERALD, at the April Term, 1858. Verdict and judg- 
ment for the defendant. The plaintiff appealed. 

No counsel appeared for either party. 
McEiNNET, J.) delirered the opinion of the Court: 



APRIL TERM, 1859. 515 

Hugh Leslie o. Joseph Joyner. 

This was an action of trover, for the alleged con- 
yersion of a quantity of tobacco. Verdict and judgment 
were rendered for the defendant, and the plaintiff ap] 
pealed in error. 

The plaintiff, as constable, had levied on the lot of 
tobacco, as the property of William Joyner, the father 
of defendant, Joseph Joyner; after which the defendant, 
churning to be the proper owner of the tobacco, ob- 
tained possession thereof, and refused to deliver it to the 
plaintiff. 

The facts respecting the ownership of the tobacco 
appear to be, that the old man, Joyner, who was in 
debt, and had a large family of ten children, which he 
was unable to support by reason of his poverty and 
physical disability, entered into a contract with his son, 
the defendant, by which the latter agreed to take two 
of his brothers — ^boys of the respective ages of eleven 
and thirteen years — and a horse beast belonging to his 
father, and to raise a crop, and furnish the family with 
provisions for that year, (1857.) Out of the crop he 
waa to reimburse himself for the supplies furnished to 
the family, and also retain reasonable wages; and what- 
ever beyond this remained of the proceeds of the crop, 
was to go to the payment of his father's debts. Wil- 
liam Joyner, the father of defendant, was examined on 
the trial as a witness for defendant, and admitted that 
the object of the above arrangement was to provide a 
support for his family, and to prevent the crop from 
being seised by creditors — being unable himself to supply 
his family with the necessaries of life. 

The tobacco in controversy is part of the crop raised 
by the defendant under the above arrangement. 



516 JACKSON 



Hugh Leslie v. Joseph Joyner. 



For the plaintiff it is contended that this was a fraud 
upon the old man's creditors, and that, in law, the crop 
raised was the property of the father, and liable to the 
satisfaction of his debts. 

We do not think so. We have said in a recent 
case — Hamilton t. Ztmmermany 6 Sneed, S9, 45 — that 
cv'erj man is under a positive obligation, both in law 
and morals, to support and maintain his family; that 
this is his first and most imperative duty. An unfortu- 
nate debtor is not bound to appropriate the proceeds of 
his daily labor . to the benefit of creditors, leaving his 
own family to suffer hunger and want. 

The position assumed for the plaintiff has no founda- 
tion in our law. The general principle is well estab- 
lished, that a conveyance, though fraudulent, of an 
interest not liable to creditors, is not within the prohi- 
bition of the statute of frauds. It is equally well 
settled that the creditor cannot coerce the debtor Uy 
l;ibor for his benefit. If, in the case before us, the 
old man, even without any consideration, had relinquished 
the use of his horse (which the law protects to him) 
and the labor of his two minor sons, to the defendant^ 
upon what principle could any creditor of the former 
have complained of it? He might use his horse him- 
self, or give the use to another, at pleasure; and so 
in regard to the labor and services of his minor chil- 
dren. In the arrangement that was made, there was 
no transfer of property, or of anything of which, in 
the absence of such arrangement, the creditors of the 

father could have availed themselves, by law, for the 
satisfaction of their debts. Consequently their rights 
were in nowise prejudiced thereby. 

Judgment affirmed* 



APRIL TERM, 1859. 517 



Memphis and Charleston R. H. Company v. O. F. Jones. 



Mbmphis and Charleston R. R. Company v. 0. F. Jones. 



CovTBACT. Ckmstruetion, Railroad Company. Liability of. Slaves. The 
defendant in error hired to the plaintiff in error, for the year 1856. 
two slaves. The contract of hiring contained the following stipula- 
tion : " And all risks incurred, or liahility to accidents, whilst in sdd 
-service, is compensated for and covered hy the pay agreed upon : the 
said railroad company assuming no responsibility for damages from 
accident, or any cause whatever." This stipulation does not relieve 
the company from liability for any injury or loss resulting from the 
wilful wrong or gross negligence of said company, or its agents, but 
it is responsible for the same. 



FROM FAYETTE. 



This cause was tried at the October Term, 1858, be- 
fore Judge Humphreys. Verdict for the plaintiff. The 
defendant appealed. 

PuLLiAM and Rivers, for the plaintiff in error. 

Jones, and J. W. & J. A. Harris, for the defendant 
in error. 

McKiNNBY, J., delivered the opinion of the Court. 

This was an action on the case, brought by Jones 
against the company, to recover damages for the loss of 
A slave, run over by a train of cars, and killed. The 
plaintiff recovered judgment for $1282. 

The record shows that Jones, the plaintiff, hired to 
the defendant, for the year 1856, two negro boys to 



518 JACKSON : 



Memphis and Charleston R. K Coirpany v. O. F. Jones. 

work on the railroad, at twenty-three dollars per months 
for each. The contract of hiring contained the following 
stipulation, namely : 

'^And all risks incurred, or liability to accidents, 
whilst in said service, is compensated for and corered by 
the pay agreed npon; the said railroad company assum- 
ing no responsibility for damages from accident, or any 
oause whatcTer." 

The slave, it seems, was lying on the track of the 
road, as a freight-train of some fovrteen ears approach* 
ed ; whether or not he was asleep, or sick, or in- 
toxicated, does not appear certainly, though it is most 
probable that he was under the influence of liquor. The 
engineer on the locomotive saw the boy, as he stated, 
at the distance of one hundred and fifty yards, ^^but 
thought it was a carpet-sack, or an old bag of clothes.'' 
The train was stopped, but not until all the cars, except 
one or two, had run over the body of the slave. 

The proof shows that the road, for a distance of 
upwards of two miles from the spot where the slave lay^ 
was straight, and a slight up grade. There is some dis- 
agreement as to the distance at which the body might 
have been seen, as the train approached. We do not think 
it necessary, however, to notice the testimony, particularly, 
as the question for our determination arises upon the 
charge of the court, though it may be proper to state 
that, in our opinion, the verdict is suiSSciently supported 
by the evidence. 

The judge instructed the jury, that, under the before 
recited stipulation of the contract of hiring, "the de- 
fendant would not be responsible for the loss of the 
slave, unless it appeared from the evidence that his loss 



APRIL TERM, 1859. 619 

MeniphiB and Charleston R. B. Company v. O. F. Jones. 

was in consequence of the wilful mUconducty or gro$i 
negligence^ of defendant's agents; and that the burden 
of the proof was upon the plaintiffs." 

This instruction is supposed, by the counsel for the 
plaintiff in error, to be erroneous. It was argued with 
great earnestness, that, admitting the loss of the slave 
to have been caused by the wilful misconduct, or gross 
negligence of the defendant's agents in charge of the 
train, still, the defendant cannot be held responsible for 
the loss ; that the contract is an absolute exemption of 
the company from liability for any injury to the slave, 
or for his loss, no matter how occasioned. We think 
differently. It might be somewhat difficult to define the 
exact meaning and effect of the foregoing stipulation ; 
this, however, is not necessary for the present determi- 
nation. But there is no sort of difficulty in determining 
what it does not mean. It is true the language of the 
instrument is very strong, but it must receive a reason- 
able and sensible construction. It would be most absurd 
to suppose, that it was the intention and understanding 
of the parties, that the company should be protected 
from liability, not only against all the ordinary casualties 
to which the slave might be exposed in working on the 
road, and, also, against injuries caused by third persons 
in which the company had no participation, but like- 
wise against injury or loss occasioned by the wilful 
wrong, or gross negligence, of the company itself, or 
its agents ! 

Such a construction of the agreement is altogether 
inadmissible. The stipulation is not available for the de- 
fendant, against its own wilful wrong, or culpable negli- 
gence. The charge of the court concedes to the de- 



520 JACKSON : 



James Nolen v. The State. 



fendant the utmost benefit that can be claimed upon any 
just construction of the instrument. 

There is no error in the record. 

Judgment aflirmed. 



James Nolen v. The State. 



1. Gbiicinal Law. Discharge of jutotb. Fending the selection of the 
Jury, and before the jurors had been charged with the trial of the 
prisoner, two of them were discharged by the Court, with the cob- 
sent of the Attorney General and the prisoner In this there was no 
error. 

2. Samv. Statement made by one jttror to hia fdlow jurors. New trial. 
A new trial will not be granted in a criminal case upon the unsup- 
ported affidavit of the prisoner, to the effect that after the jury retired 
from the bar, one of the number made a statement as of his own 
knowledge, that the prisoner was a violent, dangerous man. And Uie 
jurors are not bound to appear in court and convict themselves of a 
violation of duty. 



FROM HARDEMAN. 



The plaintiff in error was tried and convicted at the 
February Term, 1859, Humphreys, J., presiding. He 
appealed. 

L. M. Brown, for the plaintiff in error. 

Snsed, Attorney General, for the State. 



r 



APRIL TERM, 1859. 521 

James Kolen v. The State. 

McE[iNNBT, J.y delivered the opinion of the Court. 

The prisoner was convicted of murder in the second 
degree, and sentenced to ten years in the penitentiary. 
There was a motion for a new trial, and, also, in ar- 
rest of judgment — ^both of which were overruled* 

The proof is not set forth in the bill of exceptions. 
Two errors are alleged to have intervened in the pro- 
gress of the trial. The first is, that the court dis- 
charged two of the jurors, after they had been regu- 
larly elected and chosen by the prisoner, and had taken 
their seats in the jury-box. It appears from the record, 
that during the process of impaneling the jury, and 
after six jurors had been selected, it was discovered 
that one of the sij( was intoxicated; and thereupon it 
7as suggested by the court, that he be excused from 
serving on the jury; and the counsel for the prisoner 
and the Attorney General assenting to his discharge, it 
was ordered, accordingly, by the court. On the next 
morning, and before a jury was made up, one of the 
43ix jurors selected on the pieceding day, was, at the 
request of the counsel for the defendant and the Attorney 
General, excused by the court from serving on the jury, 
for the reason that his wife had been taken very ill. 

It is now objected, that the court had no power to 
discharge said jurors. This objection is not tenable. The 
jurors had not been charged with the trial of the pris- 
oner. Their discharge was with the consent of the pris- 
oner's counsel ; and, as the record shows that the prisoner 
was present, in proper person, it must be taken to have 
been with his consent also. It is not pretended that 
the prisoner was in anywise prejudiced by the release 



522 JACKSON : 



James Nolen v. The State. 



of said jurors; and he cannot now be heard to im- 
peach the regnlarity of the proceedings on that ground. 

The second error assigned is, that after the jury had 
retired from the bar, to consider of their rerdict, one 
of the number made a statement, as of his own knowl- 
edge, to his fellow jurors, to the effect that the prisoner 
was a yiolent, dangerous, man; that he had stabbed 
other persons, and should not be turned loose upon the 
community. This statement is verified by the affidavit of 
the prisoner alone. Upon this unsupported affidavit, an 
application was made to the court to award compulsory 
process, to bring before the court certain of the jurors, 
to testify as to the matter alleged in said affidavit — ^the 
jurors refusing, as is stated, to appear voluntarily. The 
court refused the application. In this there is no error. 
What might have been the effect of the statement alleged 
to have been made by the juror, if the fact had been 
established, we need not now declare. It is sufficient to 
say, that the jurors were not subject to be called on to 
convict themselves of a palpable violation of duty; for 
which, if guilty, they were liable to be punished by 
the court. 

The exceptions taken to the indictment are merely 
technical, and not available after verdict. 

There is no error in the record. 

Judgment affirmed. 



APRIL TERM, 1859. 528 



Joab Parks v. J. B. M. Allen, £x*r, ei al. 



JoAB Parks v. J. B. M. Allbn, Ex'r, et al 



Surety. Recoffnisanee. How far turefy liable. Fending the suit in the 
Circuit Court, the former secaritiee were released, and the following 
recognizance entered into by the new surety: '* Joab Parks comes 
into open court and acknowledges himself the defendant's security in 
the sum of $1000, in the room and stead of M. D. Card well and John 
A. Bogers. their former securities, conditioned that they defend their 
suit successfully, or in case of failure to pay all costs." HeUl, 1: That 
an undertaking, by recognizance, for costs, is as binding as If by bond, 
and is good, although the party to whom bound u not named, if the 
parties to the suit are named, and the party agrees to be the defend- 
ant's security for costs. 2: That the act prescribing the sum for which 
bond is to be taken in cases of contested wills, is directory, and the 
bond may be for a larger sum ; and the fact that the former sureties 
were only bound in the sum of $600, does not change the undertaking 
of the new security. 



FROM WSAKLBT. 



At the Febru&rj Term, 1859, application was made 
to his Honor, Judge Fitzgerald, for a writ of super- 
9edea$y which being refused, the applicant appealed. 

Rogers and Somers, for Parks. 



-, for Allen and others. 



Oaruthers, J., delivered the opinion of the Court. 

This is a case of some novelty, and it is diflScalt 
to know what disposition should be made of it. It 
comes before us by appeal in error from the action of 



524 JACKSON : 



Joab Parks v. J. B. K. Allen, Ex'r, et dU 



the Circuit Court, on the petition of Parks for a writ 
of iupersedeas to an execution issued against him upon 
a judgment of the Circuit Court of Weakley, for $1086 
cost, as the security of the contestants of the will of 
one James Turner, deceased. 

The contest commenced in 1856, when Cardwell & 
Rogers were the sureties, who continued until August 
Term, 1858, when they were released, and Parks became 
bound. The entry of record is in these words, as set 
forth in the petition, viz: ^'Joab Parks comes into open 
court and acknowledges himself the defendant's security 
in the sum of $1000, in the room and stead of M. 
D. Cardwell and John A. Rogers, their former secu- 
rities, conditioned that they defend their suit success- 
fully, or, in case of failure, to pay all costs." The 
case was then continued by the defendants, at the costs 
of the term; It was tried the next October, and deci- 
ded in favor of the will and against the defendants. 
Whereupon, the execution now complained of was issued 
on the 8d of November, for the costs, amounting to $1086 
The Circuit Judge granted his fiat out of court on 23d 
of February, 1859, for a supersedeas as to the cost of 
August Term, 1858, but refused it as to the balance. 
At the next term, it appears that an application was 
made in open court upon the same petition for a sur 
persedeaSj and the court refused it, except to the extent 
before stated. From that judgment the appeal is taken 
to this court. 

It is impossible for us to pass upon the correctness 
of the judgment of the Circuit Court in granting the su- 
persedeas as to the costs of August Term, 1858, because 
the record is not before us, and without that we cannot 



APRIL TERM, 1859. 525- 

Joab Parks «. J. B. M. Allen. £x'r, et al. 

know against whom that judgment was rendered, or whether 
after or before the i)etitioner entered into the recognizance 
for cost. The petition does not even disclose that fact. 
But the appeal is not from that, but from the refu- 
sal to go further. It id probable that the main object 
of the appeal is to test the question of his liability at 
all, and if liable, to reduce it to $500. These ques- 
tions are made by the petition, and if with the plaintiff 
would entitle him to the supersedeas. 

1. Is he bound at all ? There can be no doubt that 
an undertaking, by recognizance, for costs, is as good 
and binding as if by bond, which is the ordinary mode. 
But it is insisted that if that be so, yet this is not 
good because it does not bind th^ surety to the other 
party in the suit, or name any one to whom he is to 
be bound. That would have been more formal, but it 
is only a defect in form, and not in substance. It is upon 
the records in the suit of Allen v. The Turners, and 
he agrees to be the defendants' security for cost, to 
the plaintiff, of course, to whom else could it be ? It 
is too easily rendered certain to be void for uncer- 
tainty. 

2. It is argued that he could only be bound for 
9500, for two reasons : 1. That is the sum prescribed 
by statute for contestants of wills ; and 2. They enter 
in the "room and stead" of the former securities, and 
they were only bound to that extent. Neither of these 
grounds are available. The statute is only directory ss 
to the sum of $500, and the courts may exerciac a 
proper discretion in view of the magnitude of the suit, 
and the probable cost, in regulating the amount. And 
so, in taking other or additional security, the amoant 



526 JACKSON : 



William S. Smith v. Mary J. Cozart. 



may be changed. The fact that the former sureties were 
bound in f500, is no reason why the latter might not 
be bound for more. He took their places as to the 
suretyship, not the amount, — ^he agreed in his recogni- 
zance that might be raised to 81000. 

We do not see why the Circuit Judge did not su- 
percede the execution as to the 986. He could not be 
liable beyond Us obligation. 

All we decide now is, that the grounds assumed in 
the petition are not sufficient to exonerate him from 
the costs, or to reduce his obligation one-half; and, 
therefore, the Circuit Court did right in refusing the 
9uper8edead to the extent demanded. The case is af- 
firmed, and remanded where justice will be done by 
correcting and limiting the bill of costs as may be right 
and proper. 



William S. Smith v. Mary J. Cozart. 

1. Slates. Warranty, Fraud. Evidence, Where the contract for 
the sale of a slave is in writing, and contains no warranty, or a refusal 
to warrant, parol evidence is inadmissible to superadd a warranty. 
But if the contract is induced by an oral warranty, which the seller 
knowi) to be false, and is made for the purpose of throwing the other 
party off his guard, and fraudulently obtaining his consent to the 
bargain, evidence of such verbal warranty is admiasible to show that 
the assent of the party to the contract was obtained by falsehood and 
fraud, and therefore has no legal existence. The same principle ap- 
plies in the case of false and fraudulent representations made undor 
like circumstances. 

2. Same. Same. Same. Effect of stipulation that the elave is eold at 
unsound. A stipulation in the bill of sale that tha slave is sold a» 



APRIL TERM, 1859. 527 

William S. Smith v. Mary J. Cozart. 

UDsouDd property, is, in itself, an exclusion of all warranty; but auch 
a stipulation will be of no avail where the seller has been guilty of a 
wilful and intentional false representation or concealment, or has 
resorted to any contriyance to deceive and mislead the purchaser. 

%, Bamx. Same. Same. Measure of damages. If there is a breach of 
the warranty of the soundness of a slave, or a fraudulent representa- 
tion or concealment of her unsound condition — the slave not having 
been returned or offered to be returned — the proper measure of dam- 
ages is the difference in value between the slave, if in the condition in 
which she was represented to be at the time of the sale, and her then 
oeiual condition, and not the value of the slave or the price paid for 
her. 



FROM MADISON. 



At the September Term, 1858, Read, J., presiding, 
a yerdict was rendered in favor of the plaintiff. The 
defendant appealed. 

H. EL Jackson and W. H. Stephens, for the plaintiff 
in error% 

Hbryst Brown, for the defendant in error. 

McEiNNRT, J., delivered the opinion of the Conrt. 

This was an action on the case for fraud in the 
sale of a female slave. There was a recovery for 
$1,112.50. 

. The case is peculiar in some of its features, and by 
no means free from difficulty. 

It appears that the negotiation between Mrs. Gozart, 
the plaintiff below, and the defendant, Smith, for the 
purchase of the girl in question, was conducted through 
one Lightfoot, the brother and agent of plaintiff. 



528 JACKSON: 



William S. Smith v, Mary J. Cozart. 



It further appears that Mrs. Cozart had raised the 
girl, and owned her until some time in the year 1853, 
when she sold her to Smith. Not long after said sale, 
Mrs. Cozart became anxious to re- purchase the girl, and, 
through her agent, frequently importuned Smith to assent 
to a re-sale. But up to the month of June, 1856, he 
uniformly refused to do so, saying that he was pleased 
with the girl. At the period just mentioned, in a con- 
versation between Smith and Lightfoot, in regard to a 
house and lot in Jackson, of which Mrs. Cozart was a 
part owner, Smith proposed to purchase said property, 
if Lightfoot would take said negro girl at $1030, 
to which the latter assented; and a bill of sale was 
made to him, in his own name, for the alave. But the 
purchase being made for Mrs. Cozart, it was agreed 
between Lightfoot and Smith, a day or two after the 
contract, that said bill of sale should be cancelled, and 
tlfat Smith should convey the girl directly to Mrs. 
Cozart, which was done accordingly. Lightfoot was ex- 
amined on the trial, and proved that the proposal of 
Smith to sell the girl excited his suspicions that some- 
thing was the matter with her, and he inquired of him 
if she was sound. Smith replied that "she had had a 
cough, and suppressed menstruation for some short time, 
which might possibly be caused by pregnancy ; and 
spoke of it as not being a serious matter, and that it 
was temporary only." Witness further stated, that upon 
this representation, on which he relied, the trade was 
made. 

It is proved, that shortly after the purchase of the 
girl — within a week perhaps — Mrs. Cozart procured a 
physician to examine her; and he stated to the jury 



APRIL TERM, 1859. 529 

William S. Smith v. Mary J. Cozart. 

that he found the girl had consumption, and, in his 
opinion, had been laboring under that disease for six or 
twelve months; that he bo informed Mrs. Gozart, and 
expressed the opinion that the girl could not be cured, 
and was worthless. The slave died in the summer of 
1857. 

The memorandum, or bill of sale, executed by Smith 
to Mrs. Coxart, is as follows: 

^'Received of Mrs. Mary Gozart one thousand dollars 
in payment of a negro, Maria, she being the negro I 
purchased of her in 1852, or 1853. I consider the negro 
unhealthy, and sell her as unsound property, and do not 
warrant her sound. I convey to the said Mrs. Gozart 
such title as was vested in me by my purchase of the 
«aid girl from her. 

June 80, 1856. WM. G. SMITH." 

It might seem, at first view, that the jury acted 
rashly in finding a verdict for the plaintiff in the face 
of the foregoing bill of sale; but an attentive consider- 
ation of the whole case will lead to a different con- 
clusion. 

The jury must have believed (and we cannot say th&t 
the belief was unwarranted) that Smith knew of the dis- 
eased and unsound condition of the slave at the time of 
the sale, and was therefore guilty, not only of suppres- 
sion of the truth, but also of intentional misrepreisenta- 
tion. The circumstances of the case must also have 
satisfied the jury that the sale of the slave to Mrs. 
Cozart was a meditated scheme of fraud. He was fully 
aware of her desire *to re-purchase the ejave. He m^st 

have known, or at least had sufficient reason to suppose, 
84 



680 JACKSON : 



William S. Smith «. Mary J. Cozart. 



that Mrs. Cozart, who had raised the slave, belieyed 
her to be sound, and therefore would be careless in 
respect to anything that might be inserted in the bill of 
sale as to her soundness. And the conyiction forces 
itself upon the mind, that, in this view, the foregoing 
bill of sale was concocted and imposed on the plaintiff 
as a fraudulent artifice to shield the defendant against 
the consequences of a deliberate and detestable fraud. 
In this aspect of the case the verdict is well warranted. 

It is admitted to be true, as a general proposition, 
that where the contract of sale is in writing, and con- 
tains no warranty, or a refusal to warrant, parol evi- 
dence is not admissible to superadd a warranty. But 
this statement of the general rule implies the absence of 
fraud in the transaction. For, as is said by an intelli- 
gent author, if it can be shown that the contract was 
induced by an oral warranty, which was false, to the 
knowledge of the party making it, and was made for 
the purpose of throwing the other party off his guard, 
and fraudulently obtaining his consent to the bargain, 
evidence of such verbal warranty is admissible. This is 
no infringement of the rule which forbids the introduc- 
tion of parol evidence to contradict, vary, or add to a 
written instrument. The evidence is received not for 
that purpose; but, admitting the terma of the written 
contract, to show that the assent of the partj to the 
contract was obtained by falsehood and fraud, and has 
therefore no legal existence. Addison on ContrafOts, 129, 
180. The same principle applies in the ease of false 
and fraudul^it repfesentations, made aader like cifoan- 
stances. 

The sdptdatioii that tlM abve itm aoM as ^^usmvmd 



APRIL TERM, 1859. 581 



William S. Smith v. Mary J. Cozart. 



property," was, in itself, an exclusion of all warranty, 
and, in the absence of fraud, would protect the defend- 
ant from all liability. But such a stipulation is no pro- 
tection against fraud, nor will it prevent the sale from 
being avoided on proof of fraud. The seller will not 
be permitted to make use of such an artifice to cover 
the perpetration of a fraud, and exonerate himself from 
the consequences. Such a stipulation will be of no avail 
where the seller has been guilty of a wilful and inten- 
tional false representation or concealment, or has resorted 
to any contrivance to deceive and mislead the purchaser. 
Ibid., 132, 183; 1 Parsons on Contracts, 478. 

It follows, therefore, that the statements of the bill of 
sale, that the slave was sold as unhealthy j wMoundy and 
without warranty^ must be regarded as avoided by fraud; 
and the case must stand upon the false and fraudulent 
representations, on the faith of which the purchase of 
the slave is proved to have been made. 

On the subject of damages, the Court stated to the 
jury, ^'that the criterion of damages, if the slave waa 
entirely worthless, was the value or sum paid for the 
negro, and interest, if the jury thought proper to allow 
it." 

This is a confused and inaccurate statement of the 
rale of damages applicable to the case. 

The slave not having been returned, nor offered to 
be returned, the proper measure of damages was the 
difference in value between the slave, if in the condition 
in which she iTta represented to be at the time of the 
sale, and her ^hen adtual condition; and not, as the 
Court asBumed^ either the value of the slave or the 
price pidd for h«r. But we think this tttot of the 



682 JACKSON : 



R. F. Scott ei al. v. Price and Bell. 



Court does not so '^affect the merits of the judgment" 
as to justify us in reversing it under section 4516, of 
the Code. 

The verdict would, perhaps, have been the same upon 
a correct charge. It being proved that the slave was 
really valueless at the time of the sale, it was the duty 
of the jury to inquire, as the proper criterion of dam- 
ages, what would have been the value of the slave if 
merely laboring under the slight temporary indisposition 
jepresented by the defendant. And it is certainly true, 
that the price paid by the plaintiff was by no means 
<5onclu8ive evidence of what the value of the slave would 
have been if in the condition represented. Yet, as it 
•was the value as estmiated by the parties at the time, 
the jury were at liberty to regard it as at least per- 
Buasive, perhaps it might be said as sufficient, evidence 
of the value, in an action against the defendant grounded 
upon intentional fraud. 

In this view, we think the error does not affect the 
Judgment, and it is affirmed. 



R. F. Scott et al v. Prick and Bbll. 

!J. Land Law. ^cfo/ 1851, cA. 826. Occupant datm. Time to perfec 
title. By the act of 1851, ch. 826| it is unlawful for any person to 
enter land on which another resides, or which is cultivated, or 
has been previously entered by him, until such person gives at least 
thirty days notice in writing to the person residing on or cuUiyaUng 
said land, or to the previous enterer or his assignee, of his intention to 



APRIL TERM, 1859. 638 

R. F. Scott et al, v. Price and Bell. 

enter the same Any entry made, or grant obtained contrary to the 
provisions of said act, are void. And time is given until the first of 
March, 1864, to have surveys made and grants issued. 

2. Sami. Same, Same. The language of the act of 1861 is general, 
and embraces all land which had been previously entered under 
authority of law, no matter when, and without any distinction as to 
the origin or nature of the right of entry. It applies to an occupant 
enterer, and protects him as fully as it does the general enterer. 

8. Samjc. Descent An occupant right descends to keira. Upon the re> 
linquishment of the pulic lands, by ( ongress, to the State, the occu- 
pant laws previously enacted, conferred upon those who complied 
with their provisions, an inheritable interest in the lands. And upon 
the death of any person having an occupant right, or of his assignee, 
such right is cast by descent upon his heirs. 

4 Same. Act of 1851, eA. 826. Assignee protected. The right of the 
assignee of an original occupant claim is protected by the act of 1851, 
without an actual residence on the land by such assignee, or his heirs. 



FROM WEAKLEY. 



Verdict for the defendant at the February Term, 
1859, Fitzgerald, J., presiding. The plaintiffs appealed. 

RooERS, Somers and Ross, for the plaintiffs. 

Etheridge, for the defendants. 

Wright, J., delivered the opinion of the Court. 

This is an action of ejectment for the recovery of 
two tracts of land in Weakley county : one for 170 acr#B, 
and the other for 51| acres. 

The plaintiffs concede they have no title to the latter 
tract, and the contest is, as to the title of the 170 
acres. 



534 JACESON : 



K. F. Scott H al, v. Price and BelL 



The Circuit Judge held, that the defendants, also, had 
the better title to this tract. 

In this we think he erred. We are satisfied that 
one Howard, under the act of 1829, ch. 22, and prior 
to the year 1881, had an occupant right to this land ; 
and that in February of that year, he entered the same 
in the proper office by a special occupant entry, as re- 
quired by that act and the act of 1826, ch. 7 ; that 
said occupant right was preserred by said Howard and 
his assignees until the year 1838, when James H. Moran, 
the ancestor of the plainiifis, become the owner thereof 
by assignment; and that upon his death, the same came 
by descent to the plaintiffs, who are his heirs at law; 
and that they caused the said tract of land to be granted 
to them, by the State of Tennessee, on the 1st of May, 
1854. 

The defendants claim under a general entry made the 
20th of October, 1852, and a grant thereon by the 
State, of date the Ist of February, 1853 ; and if it 
were not for the existence of the occupant right of the 
plaintiffs, would have the better title. But we think the 
grant and entry under which the defendants claim, so 
far as they conflict with the entry of Howard, absolutely 
void, because made in violation of this occupant right. 

The act of 1851, ch. 326, gave to the enterers of 
land in any of the land offices in this State, and to 
their assignees, time, until the 1st day of March, 1854, 
t(4 have their entries surveyed and granted, and made it 
unlawful for any person to enter any land on which 
another resided, or which was cultivated by another, or 
which had been previously entered, until such person had 
given, in writing, at least thirty days previous notice to 



^ \ 



APRIL TERM, 1859. 535 

R. F. Scott et al. v. Price and Bell. 

the person residing on or cultivating said land, or to 
the previous enterer, or his assignee of his intention 
to enter the same; and any entry made, or grant 
obtained contrary to the provisions of the act are de- 
clared void. Etheridge, who made the entry and ob* 
tained the grant relied on by the defendants, did not 
give any notice to the assignees of the previous enterer. 
And it is now assumed for the defendants, that this act 
of Assembly has no application to an entry founded 
iqpon an occupant rights and which could never be the 
foundation of a grant; but was only intended to protect 
general entrieiy founded on military warrants, or entries 
made after the vacant lands in Tennessee were ceded 
to the State, by Congress, in 1841, by the payment of 
the fees of office, or such other consideration as the Leg- 
islature, in the disposition of these lands, had from time to 
time required. That a grant could issue upon no other 
class of entries, and none other could have been intended. 
We do not assent to this argument. The language of the 
act is general, and embraces all land which had been 
previously entered under authority of law» no matter when^ 
and without any distinction as to the origin or nature 
of the right of entry ; and we are satisfied it applies to 
an occupant entereVy and protects him as fully as it 
does the general enterer. It embraces all entries. And 
nnless it can be shown that the location made by 
Howard is not, in any legal sense, an entry, the plain- 
tiffs' rights are secured. 

The act of 182t), ch. 7, sec. 8, provides that where 
any of said occupants may wish to have their lands laid 
down on the general plan, as directed in the act, they 
shall file with the surveyor, a location in legal form for 



586 JACKSON: 



B. F. Scott et tU V, Price and Bell. 



the same, and il shall be the dutj of the suryeyor U> 
record it in a book to be kept by him (or that pur- 
pose. And what is a location thus filed, received and 
recorded, but an entry? 2 Meigs' Dig. 669, 670. It 
was recognized by the Courts, at an early day, as a& 
entry. Pettyjohn v. Akers^ 6 Yer., 448. 

It is true, that {Mrior to the Cession Act of 1841, a 
grant could not issue unless based upon a warrant; and 
since that act, upon the payment of the fees of office, 
or such other consideration as had been prescribed by 
law. But this does not prove that a new or second 
entry is necessary, any more than that an additional sur- 
vey is required where a sufficient one has already been 
made. Act of 1829, ch. 22, sec. 16. Why make an 
additional or second entry on the sarrui landj when the 
one already made is special and valid ? But, if the 
second entry be necessary, the case is still within the 
act, because it gives further time to {Nrocure grants upon 
all entrieSy and of necessity includes everything prop^ 
or requisite to be done, in order to obtain the granu 

We are to observe, also, that the act not only pro-- 
bibits an entry and grant upon lands appropriated by a 
previous entry ^ but also upon land on which another re* 
dideBj or which is cultivated by another. This provision 
is to be found in the act of 1824, ch. 22, sec. 6, and 
is noticed in Den v. Nixon^ 10 Yer., 518; and there can 
be no question, that the draftsman of the act of 1851 
was familiar with the course of legislation and decision 
in the State upon this subject. This being so, it can 
hardly be supposed that an occupant entry was not to 
share in the protection afforded by the act. These 
rights have always been guarded by the Legislature with 



APRIL TERM, 1859. 587 

R. F. Soott ei al, v. Price and Bell. 

much care. They included some of the most valuable 
property in the State, and since the year 1819, at 
least, it has been unlawful for a general enterer to in- 
terfere with them, unless it be during some hiatuB in 
the law by which they were secured. 

It is obvious, that these considerations are not reck- 
oned by the fact that the plaintiffs, as the heirs of 
James H. Moran, upon the payment of the fees of office, 
for the purpose of procuring their grant, on the 22d 
of October, 1858, caused a second entry to be made of 
this land. And they are fortified by the fact, that in 
1846, the survey then made of this land, recites that 
it was made for the plaintiffs as the heirs of James H. 
Moran, assignee of Littleton Howard^ as their occupant 
claim; and this survey is recited in the plaintiffs grant. 
Kelli/ V. ffare, 1 Hum., 163, 166. 

The provisions of the act of 1851 are extended in 
the act of 1853 to the 1st of April, 1856 ; and the pro- 
tection has been continued by subsequent legislation ; so 
that at no time since the 13th of November, 1851, 
could said Etheridge have made an entry, or have ob- 
tained a grant for this land. The plaintiffs' grant, 
therefore, in 1854, gave them a perfect legal title, the 
entry and grant of Etheridge being void. Kelly v. ffare, 
1 Hum., l63, 166; Patterson et aL v. McCtUehen et aL, 
6 Hum., 322, 3.^8. 

The right of James H. Moran and his heirs to this 
occupancy, was protected without actual residence, he be- 
ing the assignee of the original occupant. Act of 1837, 
ch. 1, sees. 17 and 18. 

Neither is there anything in the argument, that 
James H. Moran had no such interest in this land, as 



588 JACKSON : 



James M. Tomlinson et aL v. William Darnall. 

that it could be transmitted by inheritance to his heirs. 
There can, we apprehend, be no question that so soon as 
the public lands were relinquished to this State by Con- 
gress, the occupanc laws, previously enacted, conferred 
upon those who had complied With their provisions an 
inheritable interest in the land. Knox v. Thomas^ 5 
Hum., 573. It has been decided since that act, in an 
unreported case, by our predecessors, to be such an 
equitable estate as could be subjected, in equity, to debts. 
The case of Brown v. Ma$%eyy 3 Hum., 470, arose be- 
fore the relinquishment But if this were not so, an in- 
heritable quaihy was imparted to these lands by the act 
of 1845, ch. 8, sec. 4. And there can be no doubt, 
as we think, that the plaintiffs stood in the shoes of 
their ancestor and were as fully secured and protected 
as he was. 

The judgment of the Circuit Court is reversed, and 
a new trial granted. 



James M. Tomlinson et al. v. William Darnall. 



1. Patbols. Pleading, What a general replication to a plea justify* 
ing an act upon the ground of being a patrol puis in ietue. All matters 
which confess and avoid, whether alleged by the plaintiff or defendant, 
must be specially pleaded. Therefore, if a person justify a battery 
upon a slave upon the ground that he was a patrol, and acting in 
discharge of his duty, the plaintiff must, if he wishes to rely upon ex- 
cessive punishment, plead it specially : It is not admissible under a 
general replication to the plea of the defendant. 



APRIL TEBM, 1859. 589 

Jameft M. TomUnson ei al v. William Darnall. 

2. Samk. Public ojieers. What prima facie evidence of appointment 
Proof that a person has notoriously acted as a public officer, is prima 
facie evidence of his official character, without producing his commis- 
sion or appointment. 

3. Bamx. Same. Pleading, Stave. What replication of exceed admiU. If 
• a party justify a trespass upon a slave upon the ground that he was a 

patrol, and the plaintiff replies that the punishment was excessive, 
the replication admits the justification as alleged, and precludes the 
plaintiff from offering any evidence to disprove it. 



FROM MADISON. 



This cause was heard at the September Term, 1858, 
before Judge Rbad. Verdict for the plaintiff. The de- 
fendants appealed. 

H. E. Jackson and S. MoLanaban, for the plaintiffs 
in error. 

Stephbns k Stephens, for the defendant in error. 

Caruthbrs, J., delivered the opinion of the Court. 

This action of trespass was brought against the plain- 
tiffs in error to recover damages for an injury done to a 
slave. The defence relied upon was, that the acts com- 
plained of were done in the exercise of the duty of a 
patrol, by Tomlinson, with the assistance of the others. 
The slave was found from home without a pass, and 
attempted to escape, when he was pursued, knocked down, 
and whipped. The pleas were not guilty, and a special 
plea setting up the authority of a patrol. The jury 
found against the pleas, and assessed the damages at 



540 JACKSON: 



James M. Tomlinson et al, v. William Darnall. 

fifteen dollars. The errors assigned are upon the charge 
of the Court upon two points : 

1. His Honor instructed the jury that they might 
find the defendants guilty for excessive punishment, 
although they may have been vested with the authority 
of a patrol, without a new assignment in the replica* 
tion to that plea, or under a general replication, as the 
case was. 

2. The Court refused to charge, that proof that 
Tomlinson was acting as patrol was sufficient, prima 
facicy to entitle him to that defence, without the record 
evidence of such appointment, but, in substance, held the 
contrary to be the law, or evaded the question. 

On both points we are of opinion his Honor erred. 

The plea justifies the act complained of upoa the 
ground that Tomlinson was a patrol. The general re- 
plication only puts that fact in issue. If the plaintiff 
intends to rely upon the fact that the chastisement was 
so excessive that it was not justified by the authority 
of the office, that must be put in issue by a special 
replication, in the nature of a new assignment. 2 Green. 
Ev., § 634. Unless this is done, there is no notice of 
the fact to be tried. The pleadings present nothing to 
be tried but the fact of the defendant's official character; 
and if that be established, the verdict must be for him, 
and there is no other matter in issue. If the plaintiff 
chooses to rely upon excessive punishment, or improper 
exercise of authority by the defendant, he must make 
an issue upon that point by a special replication to 
that effect. This would confess the plea, but avoid its 
effect as a defence. In the section of 2 Greenleaf, 
cited above, several pertinent instances are given in illufr- 



APRIL TERM, 1859. 641 

James M. Tomlinson et al. v. William DArnall. 

tration of this rule. In the preceding section, 633, it 
is stated as a general rule of pleading, that all matters 
which confess and avoid, whether alleged by the plaintiff 
or defendant, must be specially pleaded; otherwise the 
proof of them is not admissible. We are not aware 
that this rule has ever been changed. 

But on the second point the Court held, that although 
the question of excessive punishment was raised by the 
replication, yet the plaintiff could controvert the official 
capacity of the defendant, as set up in his plea. This 
is contrary to the authorities, which hold that *^ the re- 
plication of excess admits the justification as alleged, 
and precludes the plaintiff from offering any evidence to 
disprove it." 1 Stark. Rep., 56; 4 Camp., 219, cited in 
§ 634, 2 Green. Ev. The two positions in the charge 
are, therefore, contradictory. One or the other must be 
erroneous. But they are both wrong as stated by the 
Court. We understand the law to be well settled, that 
when the official character of a party comes in question, 
proof that he has been in the undisturbed exercise of 
such office, raises a presumption that he has been duly 
appointed, until the contrary is m&de to appear by the 
party contesting it. This is an established exception to 
the rule that the best evidence of a fact, and none other, 
is admissible. 1 Oreen. Ev., §§ 88 and 92; 1 Philips' 
Ev., 226; 2 Philips', 544, notes. This exception is 
founded on general convenience, and is universally recog- 
nized. Proof, then, that a party has acted notoriously 
as a public officer, is prima facie evidence of his official 
character, without producing his commission or appoint- 
ment. His Honor deprived the defendant of the benefit 
of this rule, by refusing to charge it as requested ; but 



542 JACKSON : 



James M. Tomlinson et oL v, William Damall. 

Stated that if defendant believed he was a patrol, 
that should only save him from vindictive damages. This 
was not meeting the point at all, bat virtually evaded 
it. Yet the effect was a rejection of the instnictions 
requested on that point. 

It is of great importance to society that these police 
regulations connected with the institution of slavery should 
be firmly maintained. The well being and safety of both 
master and slave demand it. The institution and support 
of the night-watch and patrol, on some plan, are indispen* 
sable to good order, and the subordination of slaves, and 
the best interests of their owners. But the authority 
conferred for these important objects must not be abused 
by those upon whom it is conferred, as it sometimes is 
by reckless persons. 

In this case we give no opinion upon the conduct of 
defendants. If they exceeded the bounds of moderation 
in the injury inflicted, and transcended the limits pre- 
scribed by the law for the office of patrol, if it be 
found that they were entitled to that justification, then 
they will be liable under a verdict to that effect, on 
the proper issue to be raised by an amendment of the 
pleadings. 

Judgment reversed. 



APRIL TERM, 1859. 543 



Caleb Cope A Co. v. E. J. McFarland, Adm'r, &c. 



Caleb Copb & Co. v. E. J. McFarland, Adm'r, &c. 



1. Aduikibtratob and Ezsgutok. Deposiavii. Scire facias. Debt. 
When an administrator or executor has been guilty of a devastavit he 
becomes personally responsible, and his liability may be enforced, 
either by an action of debt on the judgment obtained against him sug- 
gesting a (ffra^tovt^; or, by scire facias, founded on such judgment, 
suggesting, in like manner, a devastavit 

2. Same. Same. Judgment conclusive. In either form of proceeding 
on a judgment against an administrator or executor, suggesting a de- 
vastavit, he will not be allowed to plead any plea which assumes to 
place his defence merely on the want of assets. The judgment is, in 
general, conclusive upon him. 

8. SciRB TACIAB. Administrator and executor. Judgment. What the 
scire facias must aver. A scire facias against an administrator or 
executor, to render him personally liable on a judgment rendered 
against him in his representative character, must allege a devastavit ; 
and, also, the tact of a judgment obtained against him in his charac- 
ter of executor or administrator ; lor a scire facias will not lie on a 
judgment against him individually, or against his testator or intestate. 



FROM HATWOOD. 



This cause was heard upon demurrer to the scire 
facias^ before W. H. Loving, S. J., at the July Term, 
1858. The demurrer was allowed, and the plaintiff ap- 
pealed. 

E. J. Read, for the plaintiff. 

T. 0. & W. M. Smith, for the defendant. 

McKiNNBY, J., delivered the opinion of the Court. 



644 JACKSON : 



Caleb Cope & Co. v. E. J. McFarland, Adm'r, Ac. 

The demurrer to the scire facias was properly sus- 
tained. Where an executor or administrator has been 
guilty of a devastavit^ that is, a wasting or misapplying 
of the assets, contrary to the duty imposed on him by 
law, he becomes personally responsible; and his liability 
may be enforced either by an action of debt, on the 
judgment obtained against such executor or administrator, 
suggesting a devastavit^ or, as is the usual course in 
our practice, by scire facias founded on such judgment, 
suggesting, in like manner, a devastavit. Whichever 
mode of proceeding is adopted, the averments and proof 
are the same, and the defence is also the same; in 
both, a devastavit must be distinctly averred and proved. 
The foundation of this proceeding, in either form, is the 
judgment obtained against the executor or administrator. 
And if he has allowed judgment to go against him, 
without pleading plene administrarity or want of assets, 
such judgment will, in general, be conclusive upon him 
to show that he has assets to satisfy the judgment. So 
that, in an action of debt, or scire facias^ on such 
judgment, suggesting a devastavit^ he will not be allowed 
to plead any plea which assumes to place his defence 
merely on the want of assets, for such plea would be 
contrary to what is impliedly admitted by the judgment 
against him. 

The scire facias in the present case does not suffi- 
ciently allege a devastavit. The statement that the de- 
fendant *' converted to his own use " the assets of the 
estate, is not of itself sufficient; it is not equivalent to 
a charge of a devastavit. On the contrary, the author- 
ities fully establish that a disposing of the goods of 
the testator to the executor's own use, is no devasiaviij 



APRIL TERM, 1859. 545 

William Moore v. Samuel C. Simmons et aU 

if he pays the testator's debts, to their value, with his 
own money. 1 Saund., 307 ; 1 Williams on ExVs, 543 ; 
Com. Dig. Admin., (J. 2.) Another objection to the 
%cire facitM is, that it does «ot distinctly allege the 
fact of a judgment obtained against the defendant, as 
administrator of the intestate. This is indispensably ne- 
cessary, for no action of debt, or scire facias^ founded 
on a devastavit by the executor or administrator, will 
lie against him upon a judgment obtained against his 
testator or intestate; at least, not until after the executor 
or administrator shaH -have been made a party to such 
judgment. 2 Williams on Ex'rs, 1700. Neither can this 
proceeding, in either form, be supported against the 
executor or administrator upon a judgment against the 
latter in his indiridual, and not in his representative, 
capacity. Id., 1699, note 1. 

Upon the foregoing grounds, without noticing other 
informalities in the scire facias^ the judgment must be 
^rmed. 



William Mookb v. Samuel C. Simmons et ah 



(CoxsTRUCTioK OF WRiTnTOS. Detd, Made to separate ttae of toife and 
children. Property- was oonveyed, by deed, to trustees, to be sold and 
divided ''in equal shares between Elizabeth Frierson, Solomon H. 
Shaw, SaUy Simmons, Clara Brown, and Oatj Grady's children ; that 
•portion that may belong to Sally Simmon$t fti^d the children of Bmily 
Shaw and Gaty Grady, <the two last being dead, leaving children,) to 
he held by said trustees in trust, for the only proper use, benefit, and 

85 



&i& JACESON : 



William Moore v. Samuel C Simmoas ei ttL 



behoof of the said Sally Simmons and her children, and the children 
of Caty Grady and Emily Shaw, not to be subject to the control or 
debts of any other person, either their huebands or otherwise, the same 
being intended to be held in trust by said trustees, for the use and 
benefit of the said last-named children of the said Simpson Shaw, and 
their heirs." Hdd that the children of Sally Simmons are not vested 
with an equal interest with the mother, as joint owners. That it wa& 
the intention of the donor to give the entire estate to the daughter, to 
her separate use, by which she would be enabled to support herself and 
children, as a family, and the children take no ii^terest that can be 
reached by their creditors. 



FROM GIBSON. 



At the December Term, 1858, Chancellor Williams 
dismissed the bill. The complainant appealed. 

T. J. & J. T. Cakthel, and Williams, for the com- 
plainant. 

Hill, for the defendants. 

Caruthbrs, J., delivered the opinion of the Court. 

This case turns upon the construction of a deed of 
gift made by Simpson Shaw to hi9 children, in 1842. 

The complainant, is a judgment creditor of Samue) 
C, who is a son of Sallj Simmons, one of the daughters 
of Simpson Shaw. This bill is filed to reach a sup- 
posed interest of said Samuel C«, under said deed of 
gift ; and the question is, whether, by a proper construc- 
tion of it, he has any interest which can be subjected 
to his debts .by his creditors I The Chancellor thought 



A?RIL TERM, 1859. 547 



William Hoore v. PaAuel C. SimmonB et oi. 



not, and the case is brought up by complainant to re- 
verse his decree. 

The property, consisting of land, a number of slayes, 
and other personal property, is conveyed by the deed to 
Solomon Shaw and John M. Frierson, as trustees, to 
pay all his debts ; a portion of it for his wife for life, 
and at her death to be sold, and the proceeds, together 
with the balance of the property in presently to „ be 
divided ^*in equal shares between Elizabeth Frierson, 
Solomon H. Shaw, Sally Simm<m9^ Clara * Brown, and 
Gaty Grady's children; that portion that may belong to 
Sally SimmanSj and the children of Emily Shaw and 
Oaty Grady, (the two last being dead, leaving children,) 
to be held by said trustees in trust, for the only proper 
use, benefit, and behoof of the said Sally Simnumi and 
her children^ and the said children of Gaty Grady and 
Emily Shaw, not to be subject to the control or debts 
of any other person, either their husbands or otherwise, 
the same being intended to be held in trust by said 
trustees for the use and benefit of the said last-named 
children of the said Simpson Shaw, and their heire.'* 

In the first clause the gift of the use is to his 
daughter, Sally Simmons, and in the last it is to her 
and her heirs. Both these clauses give to her the sole 
and entire right. But in the same seotion, where he 
aims to protect the property from the husband, and 
settle it to her separate use, he employs the words, ^'to 
the use and benefit of the said Sally Simmons and her 
children." 

Upon this clause the argument is based that the three 
children she then had, of whom the said Samuel G.» 
complainant's debtor, is the oldest, were vested with an 



648 JACKSON : 



William Moore v. Samuel C. Simmons et oZ. 



«qual interest with the mother, as joint owners. We 
think this construction, though plausible, cannot be main- 
tained. Taking the whole instrument together, and in 
view of the considerations by which it was prompted, 
we entertain no doubt but that the intention was to give 
the entire estate to the daughter, to her separate use, 
hj which she would be enabled to support herself and 
children, as a family. If that were not so, but a joint 
interest was vested in the children, the object intended 
^could be defeated by any creditor of the children, as is 
now attempted. If he intended to give the property to 
the latter, would he not have protected it in them, as 
4ie did that of their mother, against creditors? Surely 
the same reason existed for doing so. Another absurd 
^consequence, subversive of the apparent intention, would 
result from that construction. K any interest passed 
«to the children, it must be a present one, and, as 
«uch, might be demanded by a guardian, or by any 
child on coming of age or marrying, with an account 
Tperhaps, and thus defeat the promiQent object of keeping 
all together for the support of the family, as a unit. 

Again: why are not the children coupled with the 
-mother in the first and last* clauses, where the ^estate is 
rmeasured and given, if they were intended to have any 
title to the donation? The true intention, and palpa- 
ble construction is, that the property was given to the 
•daughter alone, protected from the control of her hus- 
band, and all others, to enable her to support herself 
and children, as members of her family. This advan- 
<tage the children would perhaps have a right, under the 
deed, to enforce, if withheld, so long as they might 
cconstitute a part of the family. 



APRIL TERM, 1859. 549 

W. M. Henry et al. v, J. B. Compton et aL 

The children, then, have no rights by virtue of the 
deed, which can be reached by their creditors, and the 
bill was properly dismissed. 

The decree will be affirmed. 



W. M. Henbt et al. v. J. B. Compton et cU. 



1» SuRBTias. Entitled to 9ttbstittction before payment of the debt Sure- 
ties are entitled to the benefit of all securities which the creditor ob- 
tains against the principal debtor ; and this is so, whether the debt 
'has been paid by the surety, or not, if the principal ha« become insol- 
vent.* 

2. Same. Same. Case in judgment. A slave was sold under a decree 
of court, which decree retained a lien on the slave for the payment of 
the purchase money. The purchaser gave bond and security for the 
price. He became insolvent, and the slave was levied on by his cred^ 
itors. The surety of the purchaser, not having paid the debt, filed a 
bill to enjoin the sale of the slave by the creditors, and to be gubetituted 
to the lien retained by the decree. It is held that the surety is enti- 
tled to the relief asked for. 



FROM MADISON. 



The bill was dismissed upon demurrer by Chancellor 
Williams, at the August Term, 1858. The complainants 
appealed. 



* There is an apparent conflict between this and the case of Gilliam v. 
Easelmnn, 5 Sneed, 86 ; but it will be seen that the question, as to the eoU 
vency of the principal, was not, as in this, raised in that case. 



550 JACKSON : 



W. H. Henry et, aL v. J. B. Compton et aL 



Haybs & MoBRiLL, for the complainants. 

M. & H. Bbown, for the defendants. 

GARUTHBBSy J., delivered the opinion of the Court. 

This case comes np by an appeal from a decree of 
the Chancellor, sustaining a demurrer to the bill. 

The object of the bill is to protect a slave, for the 
price of which the complainants are sureties, from exe- 
cution creditors of the purchaser, upon the ground that 
by the decree of the court under which he was s<dd, a 
lien was reserved, and the purchaser has become insol- 
vent without discharging the note for the consideration. 

The facts, as stated in the bill, are, that at the 
March Term, 1866, of the Chancery Court for Madison 
county, a decree was made upon the petition of Thomas 
Ingram, as administrator of John Ingram, deceased, 
against the distributees, to sell, among other property, a 
negro woman named Susan, who was struck off to de- 
fendant, Drake, at $601, for which he executed his note 
at twelve months credit, with the complainants as his 
sureties; that a lien was retained by the decree upon 
the slave for the payment of the purchase money: that 
the note has not been paid, and that, although the sale 
was confirmed at February Term, 1867, yet no title 
has yet been vested, by decree, in the purchaser, Drake. 
That Drake is utterly insolvent, and they will have the 
money to pay, unless the slave is held liable under the 
lien reserved. It is further stated that defendant, Comp- 
ton, who is a constable of Madison county, has levied 



APRIL tERM, 1859. 551 

"W. M Henrj et al. v. J. B. Compton et 4lL 

sundry executions, in his hands against Drake, upon the 
«laye, Sosan, and has taken possession of her, and ap- 
pointed a day for her sale by public advertisettient. The 
prayer is far the sale of the slave for the payment of 
the note in which they are bound as SHreties, and foi^ 
an injunction and attachment. 

There would be no doubt but that this bill Would 
be entertained, if the complainants had paid up the 
purchase money, and thereby raised an equity to be sxib- 
stituted to the rights of the creditor, (McNairy v. EaBt- 
land, 10 Yer., 810; Meigs, 172; 1 Story's Eq., 602,) 
and just as little that no such right would exist, even 
if the money had been paid by them, but for the lien 
retained in the decree. But the question here is, whether, 
-when the money has not been paid by the sureties, they 
can claim the benefit of the lien reserved. We have no 
decision upon this precise point, and can only be guided 
« by principle. The vendor has no lien upon slaves, or 
other personalty, as apon land, for the security of the 
purchase money. When the sale is made, either by the 
owner himself, or by a Court, the right to the property 
passes, unincumbered, to the purchaser. It can only be 
held liable for the consideration, in the former case, by 
Express contract, by mortgage, or reservation of the title; 
or in the latter, by a provision in the decree. This 
last mode is in the nature of, and equivalent to, the 
former. It binds the property, and limits the rights and 
power of the vendee over it, until the price is paid, 
for the benefit and security of the vendor. But the 
question here is, have the sureties of the vendee a right 
to enforce or compel an observance of that lien for 



552 JACKSON : 



W. M. Henry et al. v. J. B. Compton €t aL 



their benefit ; or, in other words, to be substituted to 
the rights of the creditor in regard to the property 
before they have discharged the debt. 

The case of Oreen v. Crockett^ 2 Dev. and Bai.^ 
890, is upon this doctrine, and commends itself to our 
approval by its reason and justice. The rule in equity^ 
which has ripened into a maxim, that sureties are enti- 
tled to the benefit of all securities which the creditor 
obtains against the principal debtor, is there extended 
to a case where the debt has not been paid, but 
the principal has become insolvent. That was a case 
of land- sold under a decree of Court where the title 
was retained until the purchase money should be paid. 
It is there held, that, as the principal debtor had be- 
come insolvent, the sureties, by virtue of their liability 
to suffer, had '^a right, before paying the debt, to file 
their bill to restrain the conveyance of the land, an(^ 
have it applied to their relief." Bunting v. RiekSy in 
the same volume, page 130, and WilliaTM v. Selme^ 1 
Dev. Eq., 151, are cited as accordant decisions. 

Without looking further, we approve the principle of 
these cases, and adopt it. There can be no difference 
in the equity of the sureties, between a case of real 
estate and that of slaves with a lien, or the title ex- 
pressly reserved by the decree for the sale. 

The property is bound for the debt to the creditor, 
and when the principal debtor, or purchaser, becomes 
insolvent, his sureties have an interest in it, so far as 
to be authorized to compel its application to their dis- 
charge and exoneration, in preference to the general 
creditors of their principal, or purchasers from him. 



APRIL TERM, 1869. 553 



W. E. Gatham v. The State. 



We think, then, upon these principles, th»t the bill 
should have been entertained, and the prayer granted. 
The decree BU3taining the demurrer will be reversed, and 
the case rem.nded for answers. 



W. E. Catham r. The State. 



AscHKATS. What necenary to establish an escheat To entitle the State 
to recover lands alleged to have escheated, it must appear that the 
ownei^s were foreiffnert, that they died without issue, and left no rela- 
tions within the United States entitled, hy law, to succeed to said 
land. If there is an omission to prove these facts, a verdict in favor 
of the State will be set aside, and a new trial granted. 



FROM PERRT. 



This Cause was tried at the June Term, 1858, be- 
fore Jucfge Walker. Verdict and judgment for the 
Stdte. The defendant appealed. 

DoHERTY and Hubbard, for the plaintiff in error. 

Sneeb, Attorney Qeneral^ and Maxwell, for the 
State. 

McKiiSNEY, J., delivered the opinion of the Court. 



554 JACKSON : 



W. £. Catham «. The State. 



This was an action of ejectment to recover a tract 
of land in Perry county, supposed to have escheated, 
by reason of the want of heirs, on the part of the 
person last seized, capable of inheriting. Verdict and 
judgment were for the plaintiff, and the defendant brought 
the case to this court. 

The evidence, as presented in the record before us, 
fails to make out a case entitling the plaintiff to a re- 
covery. It appears that the land was conveyed to 
D'Entraigne and wife, jointly, on the 13th of October, 
1852. The proof shows that D*£ntraigne, the husband, 
died in 1853, and his wife in 1854 ; ^^ and that they 
were foreigners ;' whether or not they left %%%ue^ is not 
stated in the bill of exceptions. Neither is it shown, 
whether or not they left any relations within the United 
States entitled, by law, to succeed to said land under 
the provisions of the act of 1848, ch. 165, sec. 4; or, 
1852, ch. 128, sec. 2. 

For this omission in the proof, the verdict cannot be 
maintained. On the return of the case to the Circuit 
Court, the first count of the declaration will be struck 
out. It is repugnant and absurd, to lay a demise in 
the names of persons as heir% of the person last seized, 
when the action is brought upon the assumption that the 
land escheated for want of such heirs. 

From the fact proved, that the parties were " for- 
eigners," the legal presumption in the absence of all 
evidence would perhaps be, that they were unnaturalized. 
But from the mere fact that D'Entraigne and wife were 
unnaturalized foreigners, it cannot be presumed that they 
died without issue, or without any relative entitled, by 



APRIL. TERM, 1859. 555 

D. M. Tttcker and K. Oaki v. The State. 

* 

the proYisions of the before recited acts, to succeed to 
said land. 

For this failure in the proof, the judgment must be 
reversed, and the case remanded for a new trial. 



D. M. Tucker and N, Oaks v. Tbb State. 



CxiMiKAL Law. Costs, How taxed when the defendant ia acquitted. 
Code, { 6581. If the defendant, in a State prosecution, is tried for a 
public offence, and acquitted on the merits, his costs cannot be taxed 
to, and paid by the State. The State, or the county, according to the 
nature of the offence, pays, only, the costs accrued on behalf of the 
State In the cases specified in 2 5685 of the Code.* 



FROM GIBSON. 



The court below, Williams, J. presiding, refused to 
tax the witness fees of Oaks, a witness summoned by 
Tucker, who was tried and acquitted, to the Btate. 
Tucker and Oaks appealed. 

M. B. Hill and R. P. Bains, for the appellant. 



Snbmd, Attorney -General, for the State. 

*By theact of I860, ch. 76, 2 1» any person tried and acquitted of a 
public offence, shall be liable for his own costs, unless the court trying 
sucb person shall adjudge the same against the prosecutor, State, or 
county. And the court is empowered to so adjudge it. Acts of 1869-60, 
page 57. 



666 JACKSON : 



D. M. Tucker and N. Oaks v. The State; 



Wright, J., delivered the opinion of the Court*^ 

This is a motion to retaz . costs. 

Tucker was indicted for murder, and, upon the ple» 
of not guilty, was acquitted upon the merits of the 
case at the July Term, 1868, of the Circuit Court of 
Qibson county. 

Upon the trial. Oaks was examined as a witness for 
the defendant, having been summoned for him. His fees 
amounted to (26.00; and the clerk having taxed them 
against the defendant, he and Oaks moved that they be 
taxed against the State, which the Circuit Court refused 
to do. 

This judgment of the Circuit Court was, we think, 
correct. It is an established principle of the common 
law, that costs are not to' be recovered by the prisoner 
from the government. This principle hath always pre- 
vailed in this State. Even a statute which directs the 
county or State to pay costs, is to be expounded as 
limited to the costs of the prosecution, unless a further 
intention be shown to embrace the costs of the defend- 
ant. The State carmot be taxed with the prisoner's costs 
by implication or cotrfecture. To do so, the intention 
must be clear. State v. Barton^ 8 Hum., 13; Prince r. 
The State, 7 Hum., 187. 

There is nothing in section 6681 of the Code, nor in 
any other section of that or the subsequent article, which 
changes this principle. It is true, that sections 6681 and 
6682 do provide that any person tried for a public offence, 
and acquitted on the merits, shall pay no costs; and that 
in all other cases, the defendant shall pay the costs of 
witnesses summoned by him. And by section 6688, if the 



APRIL TERM, 1859. 567 

D. M. Tucker and N. Oak? v. The State. 

defendant is convicted of a criminal offence, he shall pay 
all the costs which have accrued in the cause. 

It may not be very clear, from these sections taken 
«tlone, whether it was meant that where a person was 
tried for a public offence and acquitted on the merits, 
no judgment shall go against him for